Tennessee Plan
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The Tennessee Plan is a system of judicial appointments which attempts to limit the influence of partisan politics over the state's judiciary. It is largely patterned after the Missouri Plan and was in fact initially referred to as the Modified Missouri Plan.
Under this system, the governor of Tennessee fills vacancies occurring on the Tennessee Supreme Court, the State Court of Appeals and the State Court of Criminal Appeals due to the death, resignation, or impeachment and removal of a sitting judge. The governor is not free to choose anyone for these appointments, but must select from a list of three potential nominees chosen by a commission, currently composed of 17 members, the makeup of which guarantees it to be bipartisan and representative of minorities, with members representing both the legal community and the citizenry at large. If the governor rejects all of the persons nominated by the commission, he can then order the commission to prepare a new list of three other prospective nominees. When this occurs, the governor must make a selection from this second list. (In practice this seldom occurs, but The Tennessean reported such an instance on July 27, 2006. The assumption had always been that none of the names on the first list could be resubmitted on the second list, but the commission appears ready to ignore this.) The person chosen by the governor then begins service on the court; at the first statewide general election following his or her appointment the person's name is placed before the public on the ballot on a simple yes-no basis, e.g., "Shall Jon R. Smith be elected and retained as Judge, Court of Criminal Appeals, for Middle Tennessee?" If a majority of voters decides this question in the negative, the process outlined above starts over. Every eight years, 2006 being such a year, all members of all of the appellate courts of Tennessee are subjected to this process as well. All appellate judges are subjected to this process on a statewide basis, not just in the "Grand Division" from which they are appointed. In 2006, all of the judges submitted for approval received an affirmative vote of at least 70 percent. The names of all 27 judges (three Supreme Court and 12 each on the Court of Appeals and Court of Criminal Appeals) are available here: [1].
A separate, 12-member panel reviews the record of incumbent judges and makes its results public approximately six weeks prior to the retention elections held at the beginning of each full eight-year judicial term and reports its recommendations. This report gives the panel's rationale for its recommendations based on the public record of each of the judges and an interview process in which potential areas for improvement are noted. The report summarizes these findings and notes the vote by which judge was recommended (or, theoretically, not recommended) for retention, although not how each individual commissioner voted. This report is then published in the state's major metropolitan newspapers; the 2006 report appeared in Sunday papers as a special section. The 2006 report endorsed all of the incumbent judges seeking reelection, most unanimously and none by a margin of less than 8-3; one member appointed to the review panel this time was unable to serve.
This process was adopted as a compromise between Democrats in the Tennessee General Assembly and Republicans from East Tennessee. Many Democrats favored the process as a way of limiting the power of then newly-elected Republican governor Winfield Dunn. Republicans from East Tennessee who favored the creation of a medical school at East Tennessee State University, which Dunn opposed, agreed to support the Modified Missouri Plan in exchange for support by the Democrats for the medical school, which was subsequently created as the James Quillen School of Medicine.
Since the Plan was first implemented in the 1970s, only one judge (State Supreme Court Justice Penny White) has been removed under its provisions. (From 1974 to 1994, the Supreme Court was removed from this process, and it applied only to the intermediate appellate courts, the Court of Appeals and the Court of Criminal Appeals.)
Proponents of this system laud it as placing the judiciary above politics and freeing judges of the need to raise vast campaign funds currently necessary in statewide political races. Opponents state that it in fact leads to a self-perpetuating system of selection in which the public at large is in effect shut out of meaningful decision-making. Some opponents have asserted that the process violates the Tennessee State Constitution in that the yes-no balloting it calls for does not truly constitute an "election" in the sense intended by the document's framers. This question was adjudicated by a special Supreme Court in a case filed by political gadfly John Jay Hooker. The regular members of the Supreme Court recused themselves from the case as interested parties, since they had been selected under the provisions in question. The special court found the process to be fully compliant with applicable provisions of the state constitution.
