One strand of the warfare of national economy against local economy is the struggle to lock up control of courts.
In Tennessee the fight is in a second phase — consolidation. The first was the establishment’s seizure of the people’s liberties by mustard gas, as it were — by an illegal means of warfare. The Tennessee Plan is the name of this bit of outlawry, forbidding the people to elect judges but granting them a sop of a “yay” or “nay” of judges who’ve warmed the bench a spell.
The current practice is defended most recently by former Gov. Phil Bredesen and former chief justice Mickey Barker, who show up Oct. 1 at the offices of the Chattanooga Times Free Press to give an interview about the integrity of government and the promise of Amendment 2. The measure force-fits the constitution to fit the existing illegal statute. It appears on the ballot Nov. 4 with a bit of lawyerly slippy-wippy that would get any country attorney in trouble for malpractice.
A campaign of artifice
“This is not a partisan issue at all,” Mr. Bredesen tells reporters in Chattanooga. The people have been deprived of the right to vote for supreme court judges because if judges had to campaign before the people to solicit their vote, the process would be “wide open” to manipulation by “monied special interests,” as a news report terms it. Judges “ought to be as isolated from that process as you can get.”
For his part, Mr. Barker says if judges had to campaign, the biggest spenders would win. In states where judges run for election, “judges campaign instead of writing opinions,” he avers.
Amendment 2 backers include bigwigs and a host of groups, including the Chattanooga chamber of commerce, the League of Women Voters, the state bar association, the Tennessee Business Roundtable and the Fraternal Order of Police. The Beacon Center, a watchdog, was hornswoggled into endorsing the bill. The plan “strengthens the voice of Tennesseans in selecting our appellate court judges,” these declare, “so we get fair and impartial judges held accountable to the people of Tennessee.”
The current system — bravely challenged by a liberal Democrat in Nashville, John Jay Hooker — gives you, the voter, say-so AFTER a judge is hoisted to the bench by the governor and serves eight years. You of the hoi polloi merely ratify decisions of your betters, who have apparently insulated themselves from politics and the influence of others.
Amendment 2 is like tincture of laudanum, a sort of cure-all. It makes the constitution conform to the general assembly’s extra-legal imposition of the Tennessee Plan. With a little massaging of voters about professional management of courts, the headache is gone. A violation of law vanishes.
“Passing Amendment 2 will bring clarity to our system,” Voteyes2.org says.
“Failure to pass Amendment 2 will bring more legal challenges and continued disagreement and confusion,” the group declares, “about our judicial selection system, which destabilizes our judiciary and weakens our state.” We simply cannot have Mr. Hooker, that burr, suing us over our ultra vires acts; it ruffles our black robes and our system.
The group admits the status quo does nothing to limit “out-of-state special interest groups trying to buy our courts and influence our judges.” Retention elections have been in place for 43 years, yet local economy is being told the constitution needs an update to challenge these influences
Insouciance
The slippy-wippy by the law guild is as follows: The amendment tells the voter he’s deleting “the first and second sentences” of Article 6, section 3. But it cheats by not telling him what those sentences are.
Here’s the first of the two to be zapped: The judges of the Supreme Court shall be elected by the qualified voters of the state. A lawyer who hides legal facts from a client is a rascal. A client whose attorney says, “sign here,” but who fails to inform him of important changes by way of deletion of contract terms is liable for disbarment proceedings, says sixth-generation Tennessean and writer John Avery Emison, leading the fight for the rights of Tennessee’s commoners.
Judges, too, are representatives
Amendment 2 is an effort to remove from the “free people” of Tennessee their right to elect their judges. Its pretense is that the political class in charge of the process is neutral and benevolent.
The idea that a political campaign by a judge taints him is a wad of biodegradable bunkum. Campaigns force a judge to encounter the people, to take their pulse, to shake hands of members of the “qualified” voting public. On the trail, the judicial candidate meets mayors, diners in restaurants, cops, passersby, members of Lions clubs, school cafeteria workers, pimpled teenagers, local notables, wispy senior citizens, the occasional crank. He picks up checks and endorsements.
Campaigns don’t isolate judges; they integrate them among the people. They don’t compromise the public servant, but force him, for better or worse, to account for the people’s cares. That process makes judges representative. It gives them that sense that they are obligated to judge rightly for the people they’ve met.
Self-government is a rule of Christendom. Even among humanists, secularists and progressives who favor of rule by experts, that ideal is not entirely extinguished. Electing judges is an expression of democratic self-government.
The real question between the state’s political class and its people is omitted from the ballot. “Shall citizens forever surrender the right to elect judges to whom they send appeals?” That’s the question.
— David Tulis hosts Nooganomics.com 1 to 3 p.m. weekdays at Hot News Talk Radio 910 and 1240 AM, a show that covers local economy and free markets in Chattanooga and beyond.