The following pertains to question 13 on FACT's 2008 Legislative Candidate Survey, regarding the election of Appellate and Supreme Court justices in Tennessee.

1. How are appellate judges elected today?
   The current method for selecting appellate judges is called “The Tennessee Plan.”  Under the Plan, a 17-member commission handpicks three candidates for each vacancy on the state’s appellate courts, including the Tennessee Supreme Court.  The Governor must choose one of the three candidates or ask the commission to provide a new list.  Judges selected by the Governor are never subject to a contested election.  Instead, they are subject to an uncontested retention referenda once every 8 years.  Only one judge subject to this process has ever not been retained.  Prior to 1971 (and for a period since then), appellate judges were elected in contested elections such as are now used for local trial judges.
   
   
2. Is the plan constitutional?
   The Tennessee Constitution states: “The judges of the Supreme Court shall be elected by the qualified voters of the state… The Judges of the Circuit and Chancery Courts, and of other Inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned”  (Tenn. Const. art. VI, §§ 3, 4). Today, only Tennessee trial court judges are subject to the type of election in which a person, without approval of any commission or other elected official, can collect the signatures needed to “run for office” and be elected. The term “elected by the qualified voters” is also used in reference to state legislators who are not subject to a similar “plan.”
   
   
3. Is the public involved in the nomination of judges?
   The judicial selection commission is comprised of a small group of just 17 persons.  14 of the 17 members must be lawyers, and 12 of those 14 lawyers are chosen from five special interest lawyer organizations.  In addition, the meetings of the selection commission are not open to the public and their deliberations and reasons for nominations are not subject to public scrutiny.  The Tennessee Plan provides a lawyer-controlled, closed-to-the-public process which the Governor has characterized as “secretive” (Chattanooga Times Free Press, Jan. 14, 2008).
   
   
4. Has the plan ever been submitted to the people?
   While the courts have thus far refused to strike down the Tennessee Plan, Tennessee voters explicitly rejected the plan when it was one of 13 constitutional amendments placed before them in 1977.  It was the only amendment to be rejected by the voters that year.
   
   
5. Has the plan achieved its own objectives?
   When originally adopted in 1971, the Tennessee Plan was intended to remove politics from the judicial selection process.  However, the judicial selection process remains “vastly too political,” as the Governor recently acknowledged (Chattanooga Times Free Press, Jan. 14, 2008).  In addition, the Tennessee Plan was supposed to enhance gender and racial diversity on the appellate courts.  That has not happened.  Tennessee’s appellate courts are no where close to reflecting the state’s diversity.  In fact, the state’s trial courts, where the judges are subject to contested elections, more closely reflect Tennessee’s gender and racial diversity than do the state’s appellate courts.
   
   
6. What is the status?
   The 105th General Assembly did not extend the Tennessee Plan, meaning that the current process will cease to be law as of July 1, 2009.  The 106th General Assembly will need to determine whether to renew the Tennessee Plan, modify it, or return to open, contested elections.

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