A recent news article indicated that lawsuits had been filed once again challenging the constitutionality of the Tennessee Plan for merit selection, evaluation and retention of judges. The plan has been challenged and held constitutional on three separate occasions dating back to 1973.

The “Tennessee Plan” is the system for merit selection, evaluation, and retention elections for Tennessee judges. Statewide retention election of appellate judges assures the accountability of the judges to the public. Merit selection of the appellate judges and trial judges provides a screening process in gubernatorial appointments. Judicial performance evaluation maintains the fairness and impartiality of the bench focusing not on results but on performance; it provides the public with much needed information to make informed choices about retention of appellate judges. This system reduces the role of partisan politics and campaign contributions in judicial races.

Merit Selection:
Merit selection has been a feature of the Tennessee judiciary since 1971. Beginning with the creation of the Appellate Court Nominating Commission and continuing through the Tennessee Judicial Selection Commission, all intermediate appellate judges are screened by an expert panel with three names being provided to the Governor to fill vacancies. Appellate judges are then subject to yes-no retention elections.

With the adoption of the Tennessee Plan in 1994, merit selection was extended to appointments to the Tennessee Supreme Court and to all of the state trial courts, including circuit, chancery, and criminal courts. More than 76 judges have been appointed under the Tennessee Plan’s merit selection feature. This feature is widely credited with having fostered a highly qualified, well-respected, fair, and impartial judiciary in Tennessee.

The merit selection process is administered by the Tennessee Judicial Selection Commission. Its members are appointed by the speaker of the respective Houses, from the public and from nominees offered by various bar groups. The statute requires a conscious intention to balance geography, race, and gender in the makeup of the Commission.

Judicial Performance Evaluation:
One of the unique features of the Tennessee Plan is the requirement of published performance for each of the appellate judges who are subject to retention election. This includes judges from the Tennessee Supreme Court, Court of Criminal Appeals and Court of Appeals, and the judges are reviewed by a panel which recommends whether the appellate judges are retained in office or not. The Tennessee Judicial Evaluation Commission is made up of judges selected by the Judicial Council and lawyers appointed by two speakers of the governing houses elected by the public.

The Commission uses surveys conducted among parties to lawsuits, jurors, and lawyers, as well as other performance evaluation techniques, to make a recommendation which is published well in advance of each election. The performance results, along with the recommendation, are shared with the judge to give them an opportunity to enhance their performance. Trial judges may voluntarily participate in a confidential judicial performance evaluation program.

Merit Retention:
Merit retention of intermediate appellate judges has been a feature of Tennessee’s Judiciary since 1971. With the advent of the Tennessee Plan in 1994, merit retention elections were extended to candidates for the Tennessee Supreme Court. Retention elections offer the citizens an opportunity to elect their judges. Unlike many other high profile offices, it is difficult for the public to get to know all 29 appellate judges in the state and to measure his or her performance.

The judicial evaluation program and retention elections provide a balanced approach to public understanding of their judiciary.

One of the driving forces behind the enactment of a retention election program is experience in several other states with contested elections. Elections in several sister states have resulted in highly partisan, multi-million dollar contests in which judges are pressed to commit to a particular viewpoint in exchange for partisan support and political campaign contributions.

Merit retention elections have also proven to provide an opportunity for women and ethnic and minority judges to prove their qualifications before being subject to election.

The Tennessee Plan is working to assure competence, fairness and impartiality of judges in this state.

Marcia Eason
President-Elect
Tennessee Bar Association