judgesonmerit.org

Immediate Past President of the American Bar Association H. Thomas Wells confesses that he suffers from “Merit Selection Envy.”  The Chatanooga Times Free Press reports that Wells explained:

“I will tell you from a personal standpoint that those of us in Alabama who have partisan elections of judges look at Tennessee with a great deal of envy with how you select your Supreme Court judges through a merit selection plan. I certainly hope you don’t do away with it.”

Like Mr. Wells, we live in a state that elects all judges in partisan elections. So, we too must admit to Merit Selection Envy.  We think the cure would be a full dialogue that allows the people of Pennsylvania to decide whether we should change the way we select appellate judges.

During the last year, we’ve periodically reported about the legislative wrangling over whether or not to renew Tennesee’s Merit Selection system.  Well, it seems that Tennessee is sticking with Merit Selection and as the headline reads in the Tennessean “rejecting the election of judges.”

As the Tennessean reports, the House and Senate have each passed bills to maintain the current system, which uses a nominating commission and retention elections.  There will be some changes to the process, including a reduction in the number of lawyers on the nominating commission.

The Chattanoogan’s report offers a run down of the votes and also quotes Tennesse Bar President Buck Lewis: “‘We are pleased that it now appears that Tennessee will continue to have a system of merit selection and retention elections for appellate judges.’”

Smart move, Tennessee.

The Memphis Flyer reports that Tennessee Chief Justice Janice Holder was very clear in her support for Merit Selection during her recent address to the Kiwanis Club.  Explaining why it is imperative that the Tennesse Merit Selection be renewed and continued, Chief Justice Holder offered an eye-opening explanation of the role of judges as referees:

Justice Holder began her luncheon remarks with a tongue-in-cheek announcement. “I’m gong [sic] to talk about basketball,” she said, presenting a facetious proposal to elect officials taking part in NCAA championship tournaments, allowing them to raise money, use attack ads against election opponents, “and show bits and pieces of video of some of these games where there were bad calls.”

After asking rhetorically, “Don’t you think that’s a more democratic way to go about it?”, she answered her own question this way: “It is ridiculous, isn’t it? You wouldn’t want your [basketball] officials to be elected.” Then came her clincher: “Judges are like those officials. You relay on them to call the game fairly.”

Chief Justice Holder is right — the best way to get the most qualifed, fair and impartial judges is Merit Selection.

An editorial in the Knoxville News Sentinel urges Tennessee to keep using Merit Selection.  While acknowledging that the system could be amended somewhat to improve transparency and increase public input, the editorial argues that moving to judicial elections would be a serious mistake:

Judges are not legislators. Running for office statewide puts them in the position of having to raise money for elections – and allegiance to big-time donors perverts the ends, if not the means, of justice.

A recent Supreme Court election in Alabama cost $5 million, and a similar race in Illinois five years ago exceeded $9 million.

Imagine a statewide judicial election in Tennessee on that monetary scale. A judge winning such a contest will not create a constituency but obligations that will haunt him or her on the bench. Judges’ constituencies should be the law, reflected in the books on their shelves and their years of study and experience.

We agree, and share the concerns about the role of money in judicial elections. Of course, we’re in good company, as recent polls show the vast majority of the American public is concerned about the effect of campaign contributions on judicial decision-making.

The editorial closes by citing retired United States Supreme Court Justice Sandra Day O’Connor: “‘Justice is a lot like friendship; if you have to pay for it, it’s not worth much.’”  That pretty much sums up one of the best reasons to choose Merit Selection.

Tennessee’s Triangle Business Journal reports that “The state’s 29 current appellate court judges are in agreement that Tennessee’s merit selection process should stand.”  If not renewed by the legislature this year, Tennessee’s Merit Selection system will expire.

The state’s appellate judges are concerned that if the system expires and is replaced by an elective system, money will poison the judicial selection process.  Justice William Koch “told [the Tennessee Business Roundtable] he is concerned about the effect that campaign money would have on judges’ impartiality, were the state to require judges to run for election.”

When judges express sincere concern about the impact of campaign contributions on judicial decision-making, it’s a clear signal that judges should not be in the fundraising business.  We hope Tennessee realizes this and maintains Merit Selection.  And we hope the people of Pennsylvania will get the opportunity to decide this issue for themselves.

An editorial in the Commercial Appeal by Tennessee Bar Association President Buck Lewis makes a good case for why Merit Selection is the best way to select judges. He boils it down to two main reasons:  “money and talent.”

Mr. Lewis cites the rising cost of judicial elections across the country and the perception of the influence campaign contributions have on judicial decision-making as good reasons to keep Tennessee judges out of the fundraising business.

He also argues that Merit Selection opens up the judiciary to a more qualified candidate pool:

There are many fine lawyers who apply for judicial vacancies under Tennessee’s present system who would never subject themselves and their families to a statewide contested campaign which requires them to travel the state for months, raise millions, abandon their law practices, and be the subject of opponents’ attack ads.  Contested elections may be advantageous for lawyers who have statewide name recognition or those who heavily advertise on television. But for most lawyers, and in my view, for most of the lawyers who we would most want on our appellate courts, contested elections would present a tremendous barrier to entry.

Money and talent.  To us, these sound like good reasons to stick with  — or change to — Merit Selection.

In an op-ed in The Tennessean, Tennessee attorney (and former Tennessee judge and Attorney General) Paul Summers makes a persuasive argument about why Merit Selection is the best way to select appellate judges.  The core of his piece is his explanation of the role of an appellate judge:

Instead of black robes, judges, particularly appellate judges, should wear black-and-white striped robes. They are essentially referees. They should not make promises about what they are going to do when they get to be a judge. They should not have a voting constituency or be concerned about getting votes. . . .

A judge’s constituency should be the law and the facts of the case as presented. Judges are not supposed to prejudge anything. Even if judges have personal beliefs about an issue, they are supposed to hang those beliefs on the coat rack where they keep their robes — before they go on the bench.

This makes sense to us.  Combine that explanation with the growing problem of money in the judicial election system, and you have a winning case for Merit Selection of appellate judges.

Sworn in this past Tuesday, Tennessee’s new – and first woman – chief justice, Janice M. Holder vocalized her support of the Merit Selection system known as the “Tennessee Plan.” In fact, the entire Supreme Court wants to keep Tennessee’s current system. As Holder explains:

This court is not in favor of partisan election in which judges are obligated to raise millions of dollars for campaigns. This court is in favor of the current principles that comprise the Tennessee Plan.

Tennessee’s Supreme Court judges know that Merit Selection works in their state and how vital it is to keep the current system. That system, as we’ve written, is scheduled to sunset next year — on July 1, 2009 — if it isn’t renewed or modified. We hope that Tennessee maintains its Merit Selection system, and believe that Merit Selection will provide the best way for Pennsylvania to select its appellate judges, too.

There is an insightful editorial in the Tennessean urging Tennessee to maintain its Merit Selection system. Buck Lewis, who’s seen the Tennessee Merit Selection system from the perspective of a nominating commission member and a disappointed judicial candidate, wants the people of Tennessee to know that the system works.

That’s right, Mr. Lewis first failed to be nominated by the commission. Then, a year later, when he was recommended to fill a vacancy, his panel was rejected by the Governor due to a lack of diversity. Yet he still is a champion of Merit Selection:

More than 30 years of experience with selecting and electing judges tells me that the Tennessee Plan is the best plan we have ever had to pick our judges.

Mr. Lewis counts among his reasons for supporting Merit Selection the nominating commission’s ability to screen out unqualified applicants; the commission’s thorough vetting of candidates in a way not possible in the electoral system; and the avoidance of expensive, contentious elections.

It’s hard to imagine turning back the clock to the days when political parties nominated slates of Supreme Court judges. Tennessee would be the only state ever to scrap merit selection and revert back to raw politics.

We hope Tennessee will heed his call, and that Pennsylvanians will also realize why Merit Selection is a better way to select appellate judges.

During a recent trip to Memphis, Tennessee Governor Phil Bredesen expressed his continued commitment to renewing the “Tennessee Plan” for Merit Selection of the state’s judges. Governor Bredesen acknowledged that the current plan isn’t perfect, but he believes in it, and he’s working to preserve it.

The preservation of the Tennessee Plan is the vastly more important thing to me than any messing around or fooling around with the mechanics of the selection. I’d like to see it opened up. I’d like to see something like some additional selections… but preservation of the Tennessee Plan is a must-do for the state.

The governor also noted that other state officials, including Lt. Gov. Ron Ramsey and Tennessee House Speaker Jimmy Naifeh, support renewal of the Plan.

Memphis attorney Buck Lewis also expressed his opinion that the Tennessee Plan should be renewed. Lewis is the new president of the Tennessee Bar Association, and is a former judicial candidate that the governor had previously refused to nominate. But on the importance of the Tennessee plan, Lewis and Bredesen see eye to eye. “If you care about diversity and quality on our state’s appellate courts, you ought to care about us retaining the Tennessee Plan,” Lewis said.

It’s good to know that these officials are committed to preserving Merit Selection of judges in Tennessee. We wish them the best of luck.