The portion of Judge White's response arguing that the Tennessee Plan is constitutional was largely fraught with factual errors, misunderstandings of my essay, and methodological uncertainty.8 Although Ms. Reddick argues that she overstates the evidence in favor of this plan, - so-called 'merit selection' systems such as the Tennessee Plan.
SOME FACTS ABOUT THE TENNESSEE PLAN
He personally filed one of the cases challenging the plan, which was ultimately resolved by the Tennessee Supreme Court,2. For example, when the plan was debated on the floor of the Tennessee Senate in 1971, one senator had this to say: As he notes in his recent memoir, “[T]here were some who justifiably questioned the constitutionality of the [Tennessee plan.
I am therefore puzzled as to why Judge White chose to focus his response on issues of proper interpretation of the Tennessee Plan statute.'09. I also argued in my original essay that the retention feature of the Tennessee plan was unconstitutional. Although Article VI of the Tennessee Constitution requires that all judges be “elected by the .
There are many models, and Justice White appeared to have chosen the wrong one by which to measure the constitutionality of the Tennessee Plan. Part of Reddick's response was devoted to a number of policy arguments in favor of merit selection systems like the Tennessee Plan.' Although the non-public nature of the Tennessee Plan has been criticized by the current Governor of Tennessee,
IS THE TENNESSEE PLAN CONSTITUTIONAL?
Stare Decisis?
I have never made one of these arguments, and I fully support the other, which concerns the Tennessee Supreme Court's publishing rules and not the prudential doctrine of stare decisis. The lawsuit went to the Tennessee Supreme Court and was heard by a special panel of judges appointed by the governor, because all the regular judges were self-incriminated. Fitzpatrick, supra note 1, did not even attempt to address three of the most serious constitutional issues raised by the Plan in any of these decisions.").
Article 2, § 18, of the Tennessee Constitution due to the fact that it was not read three times in the Senate before being enacted. Indeed, one of the most famous examples of this practice has its roots in Tennessee.
The Essential Principles of
It is one that I myself subscribe to, although it is not so much in vogue these days as it once was.112 However, I did not invoke the principle that courts should be subject to legislatures, for the constitutional arguments in my essay were again not addressed to the courts, but the legislature.
Are Judges "Elected" if They are Initially
This means that a principle that tells one branch of government (the judiciary) what to do vis-à-vis another (the legislature) does not help the other branch (the legislature) decide what to do in the first instance. I argued that they would be able to do this for as long as two years.'' This is allowed by the Constitution when a judge has been appointed for an 'unexpired term.'' ." Judge White's only response to this point was to engage in a lengthy discourse on the meaning of the word "vacancy" in the Constitution and in the statutory provisions of the Tennessee Plan. 20 As I noted above, none of her discussion of the meaning of the statute is relevant because, as I explained in my original essay, I do not dispute—and I know of no one who does—that Tennessee's plan allows the governor to appoint judges for expiring terms. mandates.
To appoint rather than elect judges, the Constitution requires not only a "vacancy" but also that the "vacancy" occur during an "unexpired term." 22 Justice White had nothing to say about the meaning of the term "unexpired". term," and indeed it is difficult to see how those words could be twisted to permit the Governor to appoint judges for "expired terms."
Are Retention Referenda "Elections"?
Given that I based my argument explicitly on the 1870 interpretation of the word "election" in the context of government officials, it is difficult to know what to make of Judge White's claim that my argument was based on nothing else then '[my] own definition of 'election'. White & Reddick, supra note 7, at 527. In her response, Judge White appeared to suggest that "democratic accountability" could not have been the original purpose of the constitutional provision requiring an elected judiciary. It is clear that different provisions of the Constitution have different purposes and each provision must be interpreted in the light of its own purposes.
Under the referendums to retain the Tennessee plan, voters only ever had a "choice" between the current president and "none of them." Judge White was forced to concede that the Legislature could overturn contested elections for other public officials, including the governor.4 That is, according to Judge White, although the Tennessee Constitution requires that governors be elected, they never again have to compete with opponents.
What About the Failed Amendment of 1977?
Is MERIT SELECTION GOOD PUBLIC POLICY?
Reddick did not suggest that these points are relevant to the question of whether the Tennessee Plan is constitutional,71 the legislature will no doubt consider public policy issues when deciding whether to reauthorize the Tennessee Plan in 2009.
Do Merit Systems Select Judges
For example, while it is true that the Glick-Emmert study found that judges in states with merit selection were more likely than judges in other systems to attend "prestigious law schools," the study noted that. 34;[however, the total number is small."'83 The study also concluded in fairly unequivocal terms that "the evidence is clear that merit selection judges do not have greater judicial credentials than judges in other states."' 4. Reddick had quite right that the Choi-Gulati-Posner study found that judges in merit selection.
85 That is, the study found that judges in elected states received a greater absolute number of out-of-state citations. on this criterion. See RICHARD POSNER, How JUDGES THiNK 138 & n describing the Choi-Gulati-Posner study finding that "Supreme Court justices receive more citations in judicial opinions from judges in other states, the less secure their tenure is" because , although " [the] appointed judges receive more citations per opinion, [the] elected judges write more opinions, and the relative number of opinions is greater than the relative number of citations per opinion").
Do Merit Systems Select More Diverse Judges?
None of the studies she cited attempted to determine whether the different rates of discipline they observed were statistically significant as opposed to the result of chance.8 9 Moreover, at least one of the studies had completely different types of courts compared to each other. .'9 A scientific assessment of these comparisons will again have to try to control for any other relevant differences between such courts; no such attempt was made. She suggested this by favorably comparing the number of women and racial minorities appointed under the Tennessee plan to "the composition of Tennessee's benches before merit selection.192 However, compare the racial and gender composition of the judiciary in the 1980s with the composition in the twenty-first century is fraught with empirical danger because many things have changed in the meantime besides the method of judicial selection. The other combined interim appointments in states that elect their judges with appointments in merit systems.
Therefore, it is difficult to draw any conclusions about merit systems from these studies. Reddick noted, '9D some of the trial judges in Tennessee initially obtained their positions through temporary appointments by nominating committees rather than by election.'97 Still, this is all consistent with the idea that there is no good evidence one way or the other about whether merit systems like Tennessee's plan create greater racial or gender diversity.
Do Merit Systems Minimize Political
That is, the Tennessee Plan may not reduce the role of politics in judicial selection so much as it reduces the visible manifestation of politics in judicial selection (i.e., raising money, seeking party support, and conducting campaigns). Mrs. Reddick pointed). Although the Tennessee Plan Judicial Nominating Committee meets in public to hear testimony for or against candidates for judicial office, the committee retreats behind closed doors to deliberate and make a decision.203 Simply 201. Fourteen of Seventeen members of the Nominating Committee must be composed of attorneys, and twelve of the fourteen must be from names provided by five specialty attorney organizations: the Tennessee Bar Association, the Tennessee Defense Lawyers Association, the Tennessee Trial Lawyers Association, the Tennessee District Attorneys General Conference, and the Tennessee Association of Criminal Defense Lawyers.
As one of the earliest studies of the Tennessee Plan concluded, although "[i]t is undoubtedly true that there has been an amelioration of the more visible manifestations of partiality since the establishment of [the Tennessee Plan]," is " the appellate process" judicial selection, whether pre- or post-1971, can hardly be characterized as apolitical."2°'. Again, it should be noted that the Tennessee Constitution is not silent on this philosophical question.
Do Merit Systems Enhance Public
Conversely, those who believe in a more democratic form of government where citizens have the greatest influence. The Constitution was amended in 1853 precisely to give the public more control over the policymaking of the judicial branch.208 As in the United States, in a recent national poll, voters by seventy percent preferred elections to the selection of state supreme court justices. -five percent to twenty-one percent.2 2 The same is true of Tennessee, where a recent poll showed that voters favored election over merit selection by a margin of more than three to one.2 13 In any case, if merit selection is among members of the public as popular as mr.
Tennessee's plan is currently set to expire in June As I noted in my original essay, unless the legislature reauthorizes the plan or adopts an alternative system for selecting judges before then, Tennessee will most likely default back to contested elections in selecting its own judges.2 5. Concluding her response, Judge White predicted that if the legislature does not reauthorize Tennessee's plan next year, it will not be because the legislature followed the arguments or logic, but because the legislature "played" the plan as a "bargaining chip."216 Judge White said much the same.
