Brian Fitzpatrick, assistant professor of law at Vanderbilt Law School, testified before the Tennessee House Civil Practice and Procedure subcommittee regarding the “Tennessee Plan” on February 24.
Read Professor Fitzpatrick’s testimony
Under the Tennessee Plan, all state appellate judges are appointed by the Governor from a list of nominees submitted by the Judicial Selection Commission. The Judicial Selection Commission is a 17-person body appointed by the two speakers of the Tennessee General Assembly. The law requires that 14 of the 17 commissioners be lawyers, and that 12 of the 14 lawyers come from nominations supplied by five Tennessee bar associations: the Tennessee Trial Lawyers Association, the Tennessee Association of Criminal Defense Attorneys, the Tennessee District Attorneys Conference, the Tennessee Defense Lawyers Association, and the Tennessee Bar Association.
Once appointed, all appellate judges must run for retention in periodic elections. Under the Tennessee Plan, the nature of the retention election is decided by the Judicial Evaluation Commission, another appointed body composed much like the Judicial Selection Commission. If the evaluation commission believes a judge should not be retained, then the judge must run in a contested election. Otherwise, the judge runs in an uncontested referendum where voters are asked only the yes-or-no question whether the judge should stay on the bench. "In the entire history of the Tennessee Plan, the Judicial Evaluation Commission has never recommended that a judge not be retained, and on only one occasion has a judge lost in an uncontested referendum, an incumbent reelection rate well over 99%," Professor Fitzpatrick said.
The Judicial Selection and Evaluation Commissions are both scheduled to “sunset” on June 30, 2009, and it is unclear whether the Tennessee General Assembly will reauthorize them.
“I was asked to testify before the committee about what would happen to judicial selection and retention in Tennessee if the legislature simply let the commissions sunset and took no additional action,” Professor Fitzpatrick said. “In my view, the sky will not fall if the legislature simply lets the commissions sunset. Appellate judges would go back to being initially selected through contested elections, as they had been for 120 years before the Tennessee Plan. The uncontested referenda for retention would continue. Tennessee would thus have a system that relies on contested elections for initial selection followed by uncontested referenda for retention, the same system currently used in Illinois.”
Over the past year, Professor Fitzpatrick has debated whether the Tennessee Plan should continue with former Tennessee Supreme Court Justice Penny J. White, now the Elvin E. Overton Distinguished Professor of Law at the University of Tennessee. “I have told the legislature that the current system is both unconstitutional and does not serve the people of Tennessee well,” Professor Fitzpatrick said. “As such, I believe the legislature should not reauthorize the commissions and instead should permit them to sunset.”
The debate between Professors Fitzpatrick and White can be found in the Tennessee Law Review and the University of Memphis Law Review at the following links:
- Brian T. Fitzpatrick, Election by Appointment: The Tennessee Plan Reconsidered, 75 Tennessee Law Review 473 (2008)
- Penny J. White & Malia Reddick, A Response to Professor Fitzpatrick: The Rest of the Story, 75 Tennessee Law Review 501 (2008)
- Brian T. Fitzpatrick, Errors, Omissions, and the Tennessee Plan, 39 University of Memphis Law Review 85 (2008)