Union Hosts Amendment 2 Forum
Posted Oct 24, 2014
Last night, Union University's Department of Political Science hosted a forum on Amendment 2 with the Madison County Bar Association. The event started with Dr. Evans providing the backdrop to Amendment 2 by explaining how Tennessee moved from electing judges in popular votes to adopting a merit based system to the current proposal to adopt the "modified federal plan" where the governor would appoint a judge with the advise and consent of the General Assembly.
After Dr. Evans spoke, Matt West, the President of the Madison County Bar Association, introduced the speakers for the evening. Speaking in favor of Amendment 2 was Steve Maroney, a local attorney, and speaking against Amendment 2 was John Avery Emison, the state coordinator of "No on 2." Each individual was given ten minutes to argue their position and then each had five minutes to rebut the other side.
Maroney began by arguing that Tennessee is considering adopting a plan that has worked for the country for over 220 years as Amendment 2 looks like the current federal position. This system is better than electing judges because judicial candidates don't have to make campaign promises, seek campaign contributions, or do anything else that casts doubt on the impartiality of the judiciary. The Courts have higher public approval and legitimacy than any other institution of government and we should not do anything that weakens that support. Maroney then discussed how electing judges has affected Alabama. In their recent elections, 37 statewide judicial candidates have raised $33 million dollars or almost $1 million per race. If we move to a similar system, we will probably see the end of judges from rural areas because they will lack the base of support and money to win a race. Right now, we have appellate judges from Dyersburg and Alamo and a change to electing judges will probably mean most judges will come from the large metropolitan areas of Memphis, Nashville, Chattanooga, and Knoxville.
Emison told the audience that the real question is do citizens forever surrender their rights to elecet Supreme Court justices. This question is camoflagued in Amendment 2 and is deliberately done this way because the people would reject the Amendment if they knew this is what it would do. The basic argument for Amendment 2 is that self-government has failed because the law and courts are so complex that we should surrender our say in making decisions. And if self government has failed, then the state and nation faces more serious problems. Second, Emison said that Amendment 2 provides too much discretion to the governor. With the adoption of this amendment, the merit system and judicial evaluation system will be gone and the public will not be able to determine the quality of judges that are appointed. Third, Emison explained that the retention election system does not promote accountability because over 99% of judges are retained. That rate is similar to what you would find in North Korea. Fourth, the Amendment does not require confirmation as a judge is automatically confirmed if the legislature does not act within a certain period of time. Rejection requires both chambers of the state legislature to reject a judge which would be difficult. Emison concluded his argument saying that everybody wants an independent judiciary but there are only two ways to get this: give judges life terms of elect them. The life term is not an option for Tennessee so direct elections are the only option.
Maroney responded that self-government hasn't failed if you adopt Amendment 2 because it is the system that George Washington and James Madison supported and it is hard to claim that those two individuals did not support self-government. Moreover, the proposal is not an untried, radical system as it is the federal system. Third, Amendment 2 is endorsed by a wide variety of groups that donot normally get along such as Chamber of Commerce, Bar Association, NAACP, Farm Bureau, and others. Fourth, vetting does not end with the adoption of Amendment 2. The president fully vets judicial candidates before appointing them and the governor would do something similar. Finally, Justice Penny White would disagree that retention elections are automatic as she won. Yes judges win over 90% of the time but that is due to the incumbent advantage as elected officials usually win over 90% of the time.
In his rebuttal, Emison argued that the establishment will always attack those who oppose retention as not for judicial independence and that is false. Second, there is no law that says a judge who is not retained cannot be appointed to a new judicial position. Third, he is not a fan of the federal system because for 75 years it avoided ruling on the rights of individuals and now it does all the time and takes away many of our rights. Fourth, there is nothing more political than a political appointment and so appointing judges are just as political as electing them, except the politics are in the open in elections. Fifth, this amendment does nothing about campaign finance or judicial ethics which are also a problem in the system.
The remaining portion of the event had audience members ask questions of the speakers. The discussion was recorded and will hopefully be aired on 101.5 in the near future.