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Are You Smart Enough to Vote for a Judge?

August 2, 2014

vote for judges

Earlier this week, Commercial Appeal columnist David Waters took a rather curious position on voter engagement. Since the average voter doesn’t know anything about sitting judges or their  opponents, Mr. Waters proposed that we simply eliminate judicial elections and have all judges appointed by the “merit” system. In other words:

 The solution to low information voters is simple: disenfranchisement.

If you don’t want to be bothered learning about the candidates, no problem. There are people smarter than you  who will choose judges for you.

Relax, have a beer. Watch a reality show.

don't worry be happy smiley

Even if you have already voted in the August 7 election, it’s both timely and important to think about how judges are selected in Tennessee. In November, voters will decide how appellate and  Supreme Court judges will be selected in Tennessee going forward.  A new constitutional amendment is proposed  to enact a new method of selection, one similar to the process used for federal judges.

The basic question regarding  judicial selection is whether to elect or appoint.

Currently, appellate judges (Court of Appeals and Court of Criminal Appeals) and Tennessee Supreme Court judges are appointed under the Tennessee Plan. All other judges are elected. In David Waters’ world, all judges should be appointed under a merit-based system. An alternative mode would be to elect all judges; or to change the mix of which are elected and which appointed. If Amendment #2 is passed in November, appellate and Tennessee Supreme Court judges will be appointed by the governor and subject to ratification by the Tennessee General Assembly.

[The following material is adapted from Voting Smart (Appellate tab). We are posting it here because it applies to both the August 7 and November 4 elections, and some Back in River City followers have had difficulty finding it.]

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Our Current System: The Tennessee Plan

Our Tennessee Plan of judicial selection  – the system we have been under in some variation for most of the past 45 years – is called  a merit system. (We believe “merit” to be a misnomer.)  Individual voters do not have the power to choose judges subject to the Tennessee Plan. Instead, appointed commissions of lawyers and judges decide which candidates will make a short list (3-6) to be presented to the governor. The governor makes his selection from the list.

The argument behind so-called merit systems, favored by Democrats and progressives, is that judges and attorneys know better than voters which candidates will make the best judges. Since 1994, Tennessee  law has required an appointed, attorney/judge-dominated  commission to evaluate the performance of sitting judges subject to the Tennessee plan.  In 2009, a new law required the Judicial Performance Evaluation Commission  to publish a final report of their findings for the benefit of the voting public.

We find this report to be of very little value to voters. First of all, no sitting judge has ever received a poor performance review. According to an article appearing March 12, 2014 in the Nashville Tennessean,

 If the commission recommends against a judge, he or she must face a full-fledged contested election, in theory.

In reality, there has never been a contested election in the two decades the system has been in place. When the commission decides against recommending a judge stay in office, the judge simply retires and the negative evaluation never sees the light of day.

The commission uses multiple sources of detailed, case-specific information to evaluate each judge’s performance. The published report contains numerical performance scores. By law, the published report:

” . . . shall not include any individual record or evaluation, but may include, for each appellate judge, the individual final scores for the survey results.”

The effect of this law is to prevent voters from access to meaningful information about the individual judges’ actual performance. Instead,  voters are allowed to know only what the judges’ politically appointed peers will say about them.

(Rule #1: Never allow anything that could embarrass a sitting judge to be published).

The differences in the assigned scores (on a 5-point rating scale) are insignificant. Apparently, all our current appellate judges  grew up in Lake Wobegon, because none received a composite score lower than 4 (4.0 and above is considered to mean “above average”). Despite their glorious performances, six of the 20 appellate judges on the ballot failed to receive a unanimous retention vote from the evaluation panel. One (Thomas T. Woodall, Criminal Court of Appeals, Middle Division) barely squeaked by with a 5/4 vote. This is sufficient evidence to us that there are others in the state who could  do a better job than Judge Woodall.

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WHY WE  VOTED  “REPLACE”

We at Back in River City  voted to replace all of the appellate judges in protest of the current selection system. A merit-based system, by design, puts judicial selection in the hands of whichever political party rules the legislature. Open, contested elections hold judges accountable to voters. It’s that simple.

It is true that elections can politicize the process by bringing in campaign contributions from special  (even out-of-state) interests. The key to an accountable judiciary (and any elected office), however, is educated voters who vote their values and opinions as buttressed by facts, not the puffery of political advertising. We believe it is incumbent on all eligible Shelby County citizens to be responsible, thoughtful, informed voters.

presuppositions

The merit system shaping the Aug. 7 judicial elections for appellate judges presupposes that voters hold these beliefs:

  • The 20 sitting appellate judges on the ballot are better than any other possible candidates.
  • Voters don’t really care about holding individual appellate judges accountable; let their colleagues decide.
  • Once elected, appellate judges should stay in office until they die or decide to retire.
  • The appointed bodies who vet, nominate and evaluate judges are never influenced by politics.
  • The longer an appellate judge holds office, the more effective he/she becomes.

agree:disagree

We disagree with each of the above statements. Instead, we believe:

  • Appellate judgeships should not be lifetime appointments. An eight-year term is twice what we allow a U.S. President. Term limits could invigorate and protect our highest Tennessee courts from becoming insulated from the lives of the ordinary people who seek justice from them. (“Black Robe Fever”** is an acknowledged, widespread phenomenon).
  • There are more lawyers capable of serving on the appellate and Supreme courts than will ever have the opportunity to serve. Why shouldn’t more have the opportunity?
  • The citizens of Tennessee will be better served if these positions are considered a public honor rather than a lifetime job. The majesty of the law attaches to our system of ordered liberties, not to black robes and the individuals who don them. Appellate responsibilities are awe-inspiring. If judges held this view, asking the people for more than one term in office would seem presumptuous to them – or at least keep them humble.
  • Paradoxically, under a merit system (which should mean that the most meritorious candidates become seated judges), only politically well-connected attorneys and judges make the cut for the short list from which the Governor makes his appointments. This severely limits the number of outstanding candidates who are given the opportunity to serve (as do lengthy tenures on appellate benches).
  • Engaged citizens can make good choices when they are allowed access to adequate and pertinent information on judicial performance.  Our country’s future demands that we make this happen.

*Judge James F. Holderman, Former Chief ,U.S. District Court of the Northern District of  Illinois (2006-2013)  defines “Black Robe Fever” this way:

man in black robe with crossed hands“Black robe fever” is the problem that unfortunately exists within the minds of some judges who have forgotten one or more of the following: their humility, humanity, manners, or civility, or have forgotten what it was like to be a lawyer. They may lack patience, they may lack compassion, or they may lack an appreciation that the power of the law is based on the public’s respect for the law and the fairness with which the law is administered. We judges must always remember we have to earn the honor of being called “Your Honor” every moment of every day in everything we do.”

                ~ Quoted in The Bencher, July/Aug 2013, Inns of the Court

We believe a better informed, more engaged electorate will make a better Memphis.  We created Voting Smart: Your Guide to Shelby Co.’s  2014 Judicial Elections to help you be more informed and confident in your choices. When you vote to “Replace” judges, you are sending a message to Nashville that you want to “Retain” your right to hold judges accountable for their performance on the bench.

credit samuel m simpkins tnsn

People smarter than you.

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