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An editorial in the Commercial Appeal by Tennessee Bar Association President Buck Lewis makes a good case for why Merit Selection is the best way to select judges. He boils it down to two main reasons:  “money and talent.”

Mr. Lewis cites the rising cost of judicial elections across the country and the perception of the influence campaign contributions have on judicial decision-making as good reasons to keep Tennessee judges out of the fundraising business.

He also argues that Merit Selection opens up the judiciary to a more qualified candidate pool:

There are many fine lawyers who apply for judicial vacancies under Tennessee’s present system who would never subject themselves and their families to a statewide contested campaign which requires them to travel the state for months, raise millions, abandon their law practices, and be the subject of opponents’ attack ads.  Contested elections may be advantageous for lawyers who have statewide name recognition or those who heavily advertise on television. But for most lawyers, and in my view, for most of the lawyers who we would most want on our appellate courts, contested elections would present a tremendous barrier to entry.

Money and talent.  To us, these sound like good reasons to stick with  — or change to — Merit Selection.

In an op-ed in The Tennessean, Tennessee attorney (and former Tennessee judge and Attorney General) Paul Summers makes a persuasive argument about why Merit Selection is the best way to select appellate judges.  The core of his piece is his explanation of the role of an appellate judge:

Instead of black robes, judges, particularly appellate judges, should wear black-and-white striped robes. They are essentially referees. They should not make promises about what they are going to do when they get to be a judge. They should not have a voting constituency or be concerned about getting votes. . . .

A judge’s constituency should be the law and the facts of the case as presented. Judges are not supposed to prejudge anything. Even if judges have personal beliefs about an issue, they are supposed to hang those beliefs on the coat rack where they keep their robes — before they go on the bench.

This makes sense to us.  Combine that explanation with the growing problem of money in the judicial election system, and you have a winning case for Merit Selection of appellate judges.

Sworn in this past Tuesday, Tennessee’s new – and first woman – chief justice, Janice M. Holder vocalized her support of the Merit Selection system known as the “Tennessee Plan.” In fact, the entire Supreme Court wants to keep Tennessee’s current system. As Holder explains:

This court is not in favor of partisan election in which judges are obligated to raise millions of dollars for campaigns. This court is in favor of the current principles that comprise the Tennessee Plan.

Tennessee’s Supreme Court judges know that Merit Selection works in their state and how vital it is to keep the current system. That system, as we’ve written, is scheduled to sunset next year — on July 1, 2009 — if it isn’t renewed or modified. We hope that Tennessee maintains its Merit Selection system, and believe that Merit Selection will provide the best way for Pennsylvania to select its appellate judges, too.

There is an insightful editorial in the Tennessean urging Tennessee to maintain its Merit Selection system. Buck Lewis, who’s seen the Tennessee Merit Selection system from the perspective of a nominating commission member and a disappointed judicial candidate, wants the people of Tennessee to know that the system works.

That’s right, Mr. Lewis first failed to be nominated by the commission. Then, a year later, when he was recommended to fill a vacancy, his panel was rejected by the Governor due to a lack of diversity. Yet he still is a champion of Merit Selection:

More than 30 years of experience with selecting and electing judges tells me that the Tennessee Plan is the best plan we have ever had to pick our judges.

Mr. Lewis counts among his reasons for supporting Merit Selection the nominating commission’s ability to screen out unqualified applicants; the commission’s thorough vetting of candidates in a way not possible in the electoral system; and the avoidance of expensive, contentious elections.

It’s hard to imagine turning back the clock to the days when political parties nominated slates of Supreme Court judges. Tennessee would be the only state ever to scrap merit selection and revert back to raw politics.

We hope Tennessee will heed his call, and that Pennsylvanians will also realize why Merit Selection is a better way to select appellate judges.

During a recent trip to Memphis, Tennessee Governor Phil Bredesen expressed his continued commitment to renewing the “Tennessee Plan” for Merit Selection of the state’s judges. Governor Bredesen acknowledged that the current plan isn’t perfect, but he believes in it, and he’s working to preserve it.

The preservation of the Tennessee Plan is the vastly more important thing to me than any messing around or fooling around with the mechanics of the selection. I’d like to see it opened up. I’d like to see something like some additional selections… but preservation of the Tennessee Plan is a must-do for the state.

The governor also noted that other state officials, including Lt. Gov. Ron Ramsey and Tennessee House Speaker Jimmy Naifeh, support renewal of the Plan.

Memphis attorney Buck Lewis also expressed his opinion that the Tennessee Plan should be renewed. Lewis is the new president of the Tennessee Bar Association, and is a former judicial candidate that the governor had previously refused to nominate. But on the importance of the Tennessee plan, Lewis and Bredesen see eye to eye. “If you care about diversity and quality on our state’s appellate courts, you ought to care about us retaining the Tennessee Plan,” Lewis said.

It’s good to know that these officials are committed to preserving Merit Selection of judges in Tennessee. We wish them the best of luck.

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.

Merit Selection of judges in Tennessee involves a 3-part system of Merit Selection, judicial performance evaluation, and retention elections. Judges are nominated for gubernatorial appointment by a 17-member Judicial Selection Commission (14 lawyers and 3 non-lawyer citizens). Appellate judges stand for retention election every 8 years.

The Tennessee Plan has been in place since the early 1970s and is also known as the “Modified Missouri Plan.” It’s “winding down” this year, because the Tennessee legislature failed to reauthorize it, mostly because of allegations of too much secrecy in the meetings of the Judicial Selection Commission.

But the way to address the problems is not to scrap the Tennessee Plan and replace it with elections, says Governor Phil Bredesen — and we agree. Tennessee risks throwing the baby out with the bathwater. As Governor Bredesen suggests, perceived problems of secrecy and alleged “back-room dealing” can be addressed by amending the statute to require additional public meetings of the Commission. As the Governor explains, putting a worse system in place is not the answer:

The issue is that when you have state-wide elections, basically for appellate judges, the only people who care about those are people with very narrow special interests. They’re expensive elections because they’re state-wide, and I just think you’d have this scramble to have, you know, every interest out there whether it be business or trial lawyers or anybody else trying to elect their judges and we’d have a vastly worse system than we have today.

The problem in Tennessee isn’t secret meetings in smoke-filled rooms. That flimsy accusation is mostly a “smokescreen” itself for the special interests who seek to inject even more politics — and potentially millions of dollars — into Tennessee’s judicial selection system.

There is uncertainty in Tennessee about how appellate court judges will be selected now that the legislature failed to renew Tennesee’s Merit Selection system, which is scheduled to sunset next year. There is a vacancy on the Supreme Court, and apparently some hesitancy among potential applicants. This is not only because it’s not clear what the selection process will entail, but also because of specific concerns related to judicial elections.

Former Tennessee Supreme Court Justice Penny White, now a law professor, attributes the lack of applicants to concern about out-of-state money flowing in to influence judicial elections: “‘It only happens in states where there are elected judges on the bench.’”

We understand this concern, because this is what happened in Pennsylvania last year. We’ll keep watching Tennessee to see what happens there.

As the campaign for Merit Selection progresses, we hear some inaccurate arguments repeated by those who oppose Merit Selection. In an effort to set the record straight, we’ll reveal the truth and clear up these myths.

Myth #5: All Merit Selection Systems Are the Same
Someone once said there as many different judicial selection systems as there are snowflakes. While that’s a bit of an exaggeration, it’s true that judicial selection systems differ greatly depending on where you are. This is also true of Merit Selection systems.

The proposal to implement Merit Selection for Pennsylvania’s appellate courts incorporates the best parts of other states’ systems, and corrects aspects of those systems that are less successful. We outline below how the proposal for Pennsylvania’s appellate courts differs from the systems used by other states. (Visit the American Judicature Society to learn more about other Merit Selection systems.)

The Nominating Commission is Appointed by Elected Officials and Non-elected Entities
Like other states’ nominating commissions, elected officials like the Governor and legislative leaders have a role in appointing members of the nominating commission. However, under the unique Pennsylvania proposal, non-elected entities, including civic organizations, law school deans, unions, business organizations, nonlawyer professional associations and public safety organizations also appoint members to the nominating commission.

The Governor Cannot Request Additional Lists or Additional Names of Recommended Candidates from the Nominating Commission
Under the proposed plan, the Governor is bound to nominate from the nominating commission’s list of recommended candidates. The Governor may not reject the list or request that other names be added to it. This is different from the Merit Selection systems in place in several states, including Delaware, Massachusetts, Minnesota and Tennessee.

The Process Involves a Role for the Governor, the Senate and the Public
Under the Pennsylvania proposal, an appellate judge can only be seated after being nominated by the Governor and confirmed by the Senate. The judge will serve a short initial term of four years, after which he or she must stand before the public in a retention election. If retained, the judge may serve a ten year term, after which he or she will again be eligible to stand for retention.

Several states don’t require legislative confirmation — including Tennessee, Wyoming, South Dakota, and Kansas. And in Massachusetts and Rhode Island, judges do not stand for retention.

Merit Selection systems are as varied and unique as the states that adopt them. We think the one being considered for Pennsylvania’s appellate courts offers a better way to select appellate judges.

Keep visiting JudgesOnMerit.org to learn the truth about Merit Selection.