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Tennessee: The 'vacancy crisis'

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Michal Benari
Summer Intern, Manhattan Institute's Center for Legal Policy

In February, the Tennessee legislature approved a constitutional amendment (subject to voter approval in 2014) to end the state's use of the Missouri Plan to select state judges. Under the existing plan, a non-partisan Judicial Nominating Commission reviews and recommends judicial candidates for the governor's selection. The Commission was allowed to expire at the end of June and the legislature's amendment, if passed by voters, would make that change permanent. Thereby, the governor will have the independent duty and discretion to appoint appellate court judges. The transition is consistent with Tennessee's intention to move to a federal model of judicial appointment, whereby the governor's appointments are to be subject to confirmation by the legislature.

The amendment has generated backlash from advocates of the Missouri Plan, especially with a vacancy looming in the Tennessee Supreme Court, as Justice Janice Holder is retiring in August 2014. According to Colin Levy, Democrats and trial lawyers are claiming the absence of a Commission, renders the state without a method to fill the vacancy. Yet crucially, Levy declares that these groups are "angling to get the Missouri Plan reinstated on a 'temporary' basis" in the hopes of achieving its permanent restoration. Vanderbilt University law professor, Brian Fitzpatrick, points out that there has been an effective appointment process since 2009 and the governor is authorized to act independently when the Commission fails to submit a list of candidates. Fitzpatrick cites:

[I]f the judicial nominating commission does not furnish a list of three (3) nominees to the governor within sixty (60) days after receipt of written notice from the governor that vacancy has occurred, then the governor may fill the vacancy by appointing any person who is duly licensed to practice in this state and who is fully qualified under the constitution and statutes of this state to fill the office.

Thus, according to Fitzpatrick, Tennessee Gov. Bill Haslam already has the legal authority to appoint a judge, independent of the Commission, thereby rendering this so-called 'vacancy crisis' a fa├žade for those in favor of the Missouri Plan - notably the trial lawyers and Democrats.

Conversely, Jacqueline Dixon, partner at the Nashville Law Firm Weatherly, McNally & Dixon, PLC, expresses that the Missouri Plan "provides a merit-based selection method...This component of the Plan has increased the competence and diversity of our trial court benches." Moreover, Dixon echoes the sentiments of those against this amendment, fearing the chaos that would follow from any prolonged vacancies.

It is unclear as to whether any vacancy appointment will be made in the imminent future, but what is certain is that the transition and full implementation of the amendment or its rejection is urgently required, one way or another.

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Legal Policy

Manhattan Institute


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The Manhattan Insitute's Center for Legal Policy.