Kelsey, Lundberg File “Founding Fathers Plan Plus” Constitutional Amendment for Choosing State Appellate Judges

(NASHVILLE, TN) November 7, 2012 —  State Senator Brian Kelsey (R-Germantown) and State Representative Jon Lundberg (R-Bristol) filed a state constitutional amendment yesterday for choosing appellate judges that mirrors the Founding Fathers plan in the U.S. Constitution.  The “Founding Fathers Plan Plus,” or Senate Joint Resolution 2, would allow the governor to appoint judges subject to confirmation by the legislature.  The amendment is the product of a compromise between those who favor contested elections for judges and those who favor the current system of nomination by a committee of seventeen appointed individuals who are mostly lawyers.

“This amendment follows the tried and true system of our founding fathers,” said Sen. Kelsey.  “It will put to rest the constitutional questions surrounding how we pick judges.” 

Filing the resolution yesterday begins step two of a three-step process of amending the state constitution.  Step one occurred when the resolution passed the Senate and the House with bipartisan support of over two-thirds of the members in April of this year.  Step two will require a two-thirds vote of the Senate and House during the 2013-2014 General Assembly, which will convene January 8.  Step three is a ratification vote by the people on the November 2014 ballot.

“I am optimistic that we will be able to move forward this year with the two-thirds majority needed to put this matter into the people’s hands” said Rep. Lundberg.

Under the current Missouri Plan for selecting Tennessee Supreme Court and other appellate judges, a 17-member Judicial Nominating Commission reviews applicants and sends the governor a panel of three nominees for consideration.  The governor must then appoint one of the nominees or reject the panel and request a second panel, from which he must pick one.  At the end of eight year terms, judges are subject to a vote by the people to “retain” or “replace.”

Article VI, Section 3 of the Tennessee Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” language which causes many lawmakers to view the current system as unconstitutional.  The “Founding Fathers Plan Plus” would remove that language from the constitution.

The resolution calls for appointment of state appellate judges in a manner similar to the federal model by allowing the Tennessee governor to appoint judges to appellate courts subject to confirmation by the General Assembly.  The plan adds confirmation by the House of Representatives to the federal model. 

The plan also improves upon the federal system by prohibiting legislative inaction, which is arguably the one flaw in the federal system.  Tennessee lawmakers would be forced to vote on judicial nominees within sixty days, or the nominees would be confirmed by default.  The sixty-day clock runs from either the date of the appointment, if made during the annual legislative session, or the date of the convening of the annual legislative session, if made out of session.  The current vote by the people to “retain” or ‘replace” judges at the end of eight year terms would remain in place. 

The plan adds transparency and accountability to the current system.  Legislative hearings regarding nominees will be available to the public by video stream or public television for full transparency.  This is a big difference from the current system.  Also, the plan replaces unaccountable, unelected nominators with officials who all have to stand for election by the people.
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