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TBA response to Wall Street Journal editorial
President Marcy Eason offers corrections to errors in editorial

The Tennessee Bar Association (TBA) welcomes the opportunity to correct statements made in the WSJ opinion piece Three Gavels for Tennessee that some readers might rely on as fact.

The Tennessee Plan did  not expire with last week's failure to act by the Tennessee General Assembly.  The "Tennessee Plan" is the system for merit selection, evaluation, and retention elections for Tennessee judges.  Under Tennessee's Governmental Entity Review Law, also known as the Sunset Law, the Tennessee Judicial Selection and Evaluation Commissions were set to expire on June 30, 2008.  Those commissions, as well as a number of other state's commissions, now go into a one-year wind down.  Each of the commissions continues to exist and operate until June 30, 2009.  In fact, opponents of the Tennessee Plan repeatedly cited the one-year wind down as a reason that the General Assembly did not need to act this year on the Plan.

Merit selection has been a feature of the Tennessee Judiciary since 1971. More than 76 judges have been appointed under the Tennessee Plan's merit selection feature, widely credited with having fostered a highly qualified, well respected, fair and impartial judiciary in Tennessee.  The Evaluation Commission performs review of all appellate judges subject to retention election, which occurs every eight years.  Those results are published.

The WSJ Editorial indicates that there would be a reversion to contested, partisan elections as a method of choosing judges.  It also states that such elections are "constitutionally-mandated."

Tennessee's justice system has operated under a merit selection and retention system since 1971.  Each court which has examined the question of constitutionality has determined that the "yes-no" retention election is an election under the Tennessee Constitution.  No state or federal court which has examined the question has held the plan unconstitutional.

The Tennessee Constitution gives the power to the legislative branch to determine how judicial vacancies are filled. To provide guidance to this process the legislature first established the Appellate Court Nominating Commission, then restructured it as the Tennessee Judicial Selection Commission. Applicants are screened by that body to determine the best qualified; the names of three persons are provided to the Governor who is given the statutory power to appoint someone to serve until the next election. The Governor has no inherent, constitutional power to fill the vacancies.

It is correct that the Tennessee Bar Association along with several other bar groups made an all-out effort to try and renew the plan this year. It is not certain what the legal effect of the wind down and expiration of the selection and evaluation commissions will be if they do indeed expire. What is certain is that with the termination of the Plan, there will  be confusion and litigation.  Because such uncertainty is unhealthy the TBA advocated action this year.

The Tennessee Bar Association worked with all the interested parties, including the Governor, Lieutenant Governor, and Speaker of the House, to try to preserve the Plan.

In undertaking this effort, the TBA involved a wide array of volunteers, including TBA members.  

One of the goals for the Tennessee Plan is to reduce the role of partisan politics in judicial administration. It has met that goal admirably. Another goal is to increase opportunities for women and ethnic and minority judges to prove their qualifications before being subject to an election.   

The issue of whether the judicial selection and evaluation commissions, and retention elections, should continue has not devolved into a partisan fight. Leaders of both parties have indicated that they support the plan. By a 64-34-1 margin the Tennessee House of Representatives voted to continue the plan. This means that a third of the Republicans joined most Democrats. In addition, there has been no charge that party partisanship has anything to do with the selections .

The Tennessee Bar Association takes seriously the rights of free speech and free press,  and would be the first to come forward to defend the free expression of opinion. Consistent with those rights is a duty to accurately relay facts in expressing that opinion where facts form the basis of the published discussion.

Marcia Eason    
Tennessee Bar Association

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