In August 2014, all of Tennessee’s appellate judges will appear on the ballot, and voters will decide whether they should be retained in office. By that time, the Judicial Performance Evaluation Commission will have provided information to the public about these judges’ performance on the bench, based on surveys, written opinion review, and caseload statistics, and made a recommendation as to whether each judge should be retained. Last month, the commission announced that it may take the unprecedented step, at least for the Tennessee commission, of recommending against the retention of three intermediate appellate court judges. Though the commission’s final report will not be released until March, one of these three judges has announced that he will not seek retention. According to statute, if the commission recommends against a judge’s retention and that judge still opts to stand for retention, other candidates are free to challenge the judge. Some see a partisan taint to the Republican-dominated commission’s initial vote, since all three judges in question are Democrats.
Since its creation in 1994, the commission has not recommended against the retention of a judge. Similarly, a non-retention recommendation or an indication that a judge does not meet minimum performance standards is relatively rare in the six other states—Alaska, Arizona, Colorado, Missouri, New Mexico, and Utah—that evaluate judges standing for retention. Many judges who receive negative evaluations choose not to seek retention. However, allowing other candidates to oppose a judge who gets an unfavorable assessment makes Tennessee’s process unique.
As IAALS Online has covered in the past, Tennessee voters will decide in November 2014 whether to amend the state constitution to alter the process for selecting the state’s appellate judges. The proposed constitutional amendment calls for appellate judges to be appointed by the governor with legislative confirmation, followed by retention elections for subsequent terms. Essentially, with the new proposal, legislative confirmation would replace the role of a nominating commission in recommending the best qualified applicants under the current process. Governors used a nominating commission by statute until last July, when the commission expired, at which point Governor Bill Haslam authorized the Commission on Judicial Selection by executive order.
The Tennessee Bar Association has come out in support of the judicial selection proposal, on the grounds that Governor Haslam has pledged to continue using a nominating commission to make his appointments. However, since the commission was created by executive order, it will end with Haslam’s tenure as governor. Meanwhile, the new president of the Nashville Bar Association described the proposed amendment as “not perfect,” but stressed that judicial elections for appellate judges must be “avoided at all costs.”