Back in 2009, the state Legislature rejiggered the Judicial Evaluation Commission to become the Judicial Performance Evaluation Commission, cutting the number of members by three and ensuring that all members are selected by the Speakers of the House and the Senate. (Previously, half the commission was appointed by the Judicial Council.)
Anyway, under state law, all boards and commissions have to be renewed every four to eight years, or they cease to exist. Four years from 2009 is now, 2013, meaning JPEC is up for renewal. (So is the Judicial Nominating Commission as well.) The Legislature has plans to adjourn by Friday. And as to date, the Senate still hasn't scheduled a vote on the bills that would renew either commission.
The Legislature has played this kind of brinksmanship before--in 2009, in fact--because they have some crazy hope that if the commissions expire, that means we can elect judges or something, as Tom Humphrey reported back in January:
However, back in 2009, when this almost happened the first time, Attorney General Bob Cooper opined that there would be no legal way to fill vacancies if the commissions expired.There has been considerable dispute over what would happen if both commissions were allowed to die this year. Some contend that the state's top judges would then become subject to contested elections, as lower level judges are now. Others say the result would be that the governor could appoint whoever he wanted to the top courts and without judges being subject to evaluation.
Cooper's formal opinion, requested by four Republican legislators, contrasts with contentions by others that termination of the Judicial Selection Commission and the Judicial Evaluation Commission would mean a return to contested elections for the state's top judges.
You can read the whole 14 pages here. We checked with the AG's office to see if anything in the situation had changed that could have possibly affected the opinion in the meantime; the office's response was, "Our opinion on this issue speaks for itself and we have issued no opinions otherwise.""Vacancies occurring in the appellate courts on or after July 1, 2009, could not be filled because there would be no operative statutory procedure for the filling of vacancies," states the opinion.
But what's really happening this year is more than brinksmanship or even an attempt to let the commissions die. It's a stealthy attempt by the GOP to attempt to affect next year's judicial elections.
In 2014, every state appellate judge, including the Supreme Court justices, will be up for retention. That's where the ballot just asks you to vote "Yes" or "No" as to whether the state should retain the judges in question. It's an election, but conservatives who want a fully elected judiciary hate it because it's really hard for judges to lose a retention election--it's only happened once.
Before all those elections happen, however, the JPEC must issue evaluations of of every state appellate judge. How this happens is that the commission sends out surveys regarding the judges to a lot of people--clerks, trial lawyers, litigants who have been in the judges' courtrooms, etc. It's a lengthy process, and it's complicated by the fact that many lawyers receive surveys for multiple judges, meaning the process has to be staggered somewhat so that everyone isn't drowning in paperwork. After compiling all the results, JPEC must issue evaluations, either "for retention" or "for replacement." If a judge receives an evaluation "for replacement," than he or she cannot be on the retention ballot but must run in a regular contested election.
So what's the issue? Well, it's this: The bill to extend JPEC and prevent it from ceasing to exist has an amendment tacked on to it, courtesy of Sen. Mike Bell, that would scrap the current members of JPEC and force Speaker Beth Harwell and Lt. Gov. Ron Ramsey to appoint an entirely new commission to start work July 1.
There are two big problems with this amendment. One is that the current JPEC has already started work on next year's evaluations--and, according to one member, Mike Tant, would have already started sending out surveys if the commission's status wasn't in legislative limbo. "If they want to replace us, that's fine, but it'd be better if they do it next year," Tant says. "They are going to be starting way behind the power curve." (Bell says this isn't an issue. He says he's talked to "a friend" who's on JPEC that assures him "they'll still have plenty of time." Bell declined to name the commission member with whom he spoke.)
But the second problem is the more upsetting one, and one that could potentially have a big impact, not just on next year's elections but on how law is interpreted in Tennessee for years to come. Members of the legal community I've spoken with--none of whom wanted their names used--are extremely worried that the only reason the amendment to reset JPEC with new members has been introduced in the Senate is because Ramsey and others want to ensure a much more conservative commission, one that would be much more highly likely to give an unfavorable rating to the state's more liberal judges, forcing them to run in contested elections next year.
The main target is suspected to be Supreme Court Justice Janice M. Holder, the last remaining member of the court* that issued the extremely controversial Planned Parenthood vs. Sundquist in 2000, which created a stronger constitutional protection for legal abortion in Tennessee than Roe vs. Wade does. However, Supreme Court Justices Cornelia A. Clark, Sharon G. Lee, and Gary R. Wade are also known to be on the leftward side of things--each has made significant donations to Democratic candidates according to federal campaign finance records, and Wade, the former mayor of Sevierville, has openly talked about his Democratic party past.
Bell at first said his amendment wasn't politically motivated. "At times, and we've done it before, we look around and say we need a do-over. We've got a bill this session that reconstitutes the historic preservation commission," Bell said. "There are [no specific members of JPEC] that I'm trying to get rid of." When asked if there were members that Ramsey wanted gone, he said I'd have to ask him. (Ramsey's press secretary did not return a request for comment.) Bell then said the following: "Of course we know judges never get involved in politics. They never get involved in politics. That was me dripping with sarcasm, in case you couldn't tell."
Allan Ramsaur, the head of the Tennessee Bar Association, said the agency is concerned with the amendment, although not quite as concerned as it was with an earlier bill, now dead, that would have totally revamped JPEC to the point that it could have blocked judges from seeking retention at all. "It is important for there to be some continuity on the commission, and it is important that evaluations be done with credibility," Ramsaur says. "We prefer that the current commission continue on. That will give the highest level of credibility to the proceedings."
But, if there's one thing we know, it's that Ramsey and his ilk aren't too concerned about credibility. The bill's actual sponsor, Sen. Doug Overbey, is a lawyer himself (and a generally credible guy); he did not respond to repeated attempts for comment about concerns over Bell's amendment. And although the bill still hasn't been calendared, late this Wednesday afternoon, Bell says he has little doubt the bill will indeed pass this week.
*An earlier version of this post said Holder authored the opinion herself. That was incorrect. The opinion was written by then-Chief Justice E. Riley Anderson. Holder joined Anderson in supporting the majority opinion.