Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Wednesday, December 18, 2013

Tennessee Judicial Retention

Since the 1970's, Tennessee judges have stood for retention every eight years.  As the Tennesseean says, "Critics say these yes-or-no votes violate a requirement in the state constitution that judges run for election."  For example, Vanderbilt Law Professor Brian Fitzpatrick writes "The Tennessee constitution states that all judges 'shall be elected by the qualified voters' of the state. Yet, under the Tennessee Plan, the governor appoints all appellate judges, and those judges come before the voters only after a period of time on the bench and only in uncontested yes-no retention referenda."

The Tennessee legislature approved a proposed constitutional amendment to select its supreme court through a federal model system of  gubernatorial appointment subject to legislative confirmation.
In November 2014, the states voters will decide whether to adopt this amendment, which has the support of the Tennessee Bar Association.

In the interim (August 2014) however, Tennessee appellate judges will stand for retention. The state's Judicial Performance Evaluation Commission, which will provide the public with information about these judges, announced that it may take the unprecedented step of recommending against the retention of three intermediate appellate court judges.  Malia Reddick writes: "Since its creation in 1994, the commission has not recommended against the retention of a judge. Similarly, a non-retention recommendation or an indication that a judge does not meet minimum performance standards is relatively rare in the six other states—Alaska, Arizona, Colorado, Missouri, New Mexico, and Utah—that evaluate judges standing for retention. Many judges who receive negative evaluations choose not to seek retention. However, allowing other candidates to oppose a judge who gets an unfavorable assessment makes Tennessee’s process unique."

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