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Joseph A. Woody Woodruff, a Franklin resident, is an attorney with Waller, Lansden, Dortch & Davis in Nashville.
 

Commentary by Joseph Woodruff: Reforming Tennessees judicial selection process

Tennessee’s process for screening applicants for appointment to judicial vacancies needs a serious overhaul. The current Judicial Selection Commission is mired in special-interest politics, most Judicial Districts have no representation on the Commission, some Districts in East Tennessee have never been represented, and the dysfunction surrounding the recent efforts to fill a vacancy on our State’s highest court ultimately led to a lawsuit between the Governor and the Selection Commission.

Many critics of the current judicial selection system call for doing away with the Commission entirely and having statewide direct elections for appellate judges. Those critics go too far. Rather than substituting the free-for-all of partisan election campaigns for a system that is intended to screen candidates for qualifications and merit, the General Assembly should reform the process by which the members of the Judicial Selection Commission are themselves appointed.

Currently, a total of 15 citizens selected by the Speaker of the House and Lieutenant Governor serve six-year terms on the Commission with the prospect of being reappointed for a second term. The Speaker and Lieutenant Governor select these commissioners from lists submitted to them by a number of professional organizations including the Tennessee Trial Lawyers Association, the Tennessee Association of Criminal Defense Lawyers, and the Tennessee Defense Lawyers Association, that have a vested stake in both the legislative process and in shaping the composition of the judicial branch.

The current law expressly grants this privilege to these interest groups and some incumbent commissioners have served for as long as there has been a Selection Commission. 

These 15 commissioners review the qualifications of applicants for judicial vacancies in the trial and appellate courts and recommend three candidates to the Governor for appointment. Tennessee has 31 Judicial Districts. Even if no two commissioners were from the same judicial district, more than half of all judicial districts have no representation on the Commission. The overwhelming majority of Tennesseans have no vote and no voice in determining who the people are that, in turn, select the gatekeepers for the third branch of state government.

There is nothing wrong with the judicial selection process that cannot be remedied by changing the way in which the Judicial Selection Commission members are selected. Toward that end, I offer the following proposal:

1. Increase the number of Commissioners to 31, the number of Judicial Districts in the state.

2. Allocate to each Judicial District one of the seats on the Commission and vest the power to appoint a commissioner in the elected judges of the courts of general jurisdiction [Circuit, Chancery, and in applicable counties Criminal Court], the District Attorney and the Public Defender in each Judicial District.

3. Organize the 31 members of the Selection Commission into three ”panels” corresponding to Tennessee’s three Grand Divisions and the Sections of the Courts of Appeals and Criminal Appeals. Applicants for judicial vacancies in the trial and appellate courts would be reviewed and recommended to the Governor by the Commission “panel” that covers the Judicial District [trial court] or Section [Court of Appeals / Court of Criminal Appeals] where the vacancy exists. Applicants for vacancies on the State Supreme Court would be reviewed and recommended to the Governor by the full 31-member Commission.

In all other respects, the job of the Judicial Selection Commission would remain the same as it is today. The Commission would review the qualifications of persons applying for appointment to fill judicial vacancies and would make recommendations for appointment to the Governor based upon the Commission’s assessment of the merits of the respective applicants.

Increasing the number of Commissioners in this manner guarantees that the Judicial Selection Commission would reflect the geographic and political diversity of the State as a whole. Empowering the judges, district attorneys and public defenders to appoint the commissioner for their judicial districts will create a Commission better able to asses the qualifications and merits of applicants in light of regional and local needs and places the power to appoint the “gatekeeper” at a level only one step removed from the voters.

The cure for whatever ails the judicial selection process in Tennessee is not to revert to directly electing appellate judges.
The remedy can be found in reforming the way Judicial Selection Commissioners are selected in the first place. Cynics might argue that the legislative branch would never adopt such a reform proposal because to do so would mean taking the ability to influence the composition of the judicial branch away from powerful special interests. The General Assembly should take this opportunity to prove that the cynics are wrong. 

Posted on: 2/22/2007

 
 

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