judgesonmerit.org

William M. Barker, current Chief Justice of the Tennessee supreme court, is retiring, and he gave an “exit interview” to the Nashville City Paper, praising the state’s judiciary as the best he’s ever seen, because of the Merit Selection plan under which they were chosen and now serve:

“We have right now in Tennessee the best judiciary that I can remember in my 40-year legal career,” Barker said. “And it’s because we have had good people chosen.”

The Tennessee Plan was instituted in the early 1970s. Justice Barker has been an eyewitness to its success and effectiveness through his career, first as an attorney in private practice from 1967 to 1983, then as a judge, and now as a state supreme court justice. He explains that abandoning the Tennessee Plan for contested elections is a bad idea, for two reasons. First, judges must rule according to the law and the Constitution, not by a tyranny of the majority where judges may feel beholden to popular opinion.

Justice Barker’s second reason why the Tennessee legislature should reauthorize the Plan is that it keeps money out of judicial elections:

“Now who gives that kind of money [$13 million in Alabama in 2006] to a judge candidate except those who want to influence decisions,” Barker said. “And I just think that’s unseemly. So even though we’ve got a few warts and perhaps our system needs to be tweaked and perhaps our system can be improved, fundamentally it’s the best system in my view.”

Justice Barker further points out that, despite any claimed current “serious doubts” about the law, state constitutional challenges to the Tennessee Plan failed in both 1973 and 1996. As for improving the system, Justice Barker appears to acknowledge, as we do, that any plan for selecting the judiciary has its flaws — but Merit Selection addresses the appearance of unfairness better than do contested elections because it removes the influence of money from the process.