The five justices are selected by a committee and approved by the governor to eight-year terms. At that time, the justices are eligible for a retention vote in the general election.
The first state constitution approved by the people was ratified in March 1835. The newest constitution was ratified on the fourth Saturday in March 1870. For the following 100 years, state Supreme Court justices were elected by voters. In 1971, the Tennessee General Assembly changed the selection process from popular vote to a 17-member Judicial Nominating Commission.
“Either the words in our constitution mean what they say or they don’t. If they don’t, then nothing is sacred. That’s why I’m passionate about what I think is a disservice the State Legislature did to the State of Tennessee in 1971,” Bell said.
The Judicial Nominating Commission reviews applicants for judicial vacancies on the state trial and appellate courts. The commission then makes recommendations to the governor who makes an appointment to fill the vacancy. Eight of the 17 members of the commission are appointed by the speaker of the senate. Eight of the members are appointed by the speaker of the House. One member is jointly appointed by the speakers of the Senate and House.
Bell, a Republican from Riceville, said the Judicial Nominating Commission will come up for authorization in the Senate Government Operations Committee next year and he promised members of the Kiwanis Club of Cleveland it would have problems passing.
“The foundation of the Tennessee Plan is coming up for reauthorization through a committee I serve on and I promise you it’s going to have problems in that committee. It’s going to have all the problems I can create in that committee,” he said.
Seventeen states have plans similar to Tennessee. Sixteen states have amended them into their constitutions. Tennessee has not.
“We have a constitutional process and if the people vote in this process and put it in the constitution, the detractors of this current plan go away. If the people say this is what they want, then this is what we should do.”
The people rejected the judicial nominating plan in 1978. If it is rejected again, then the selection process should return to the process outlined in the state constitution, Bell maintains.
Bell, who represents the 9th Senate District, said the Democrat-controlled General Assembly made the change after Republican Winfield Dunn (1971-75) was elected governor. He was the first Republican governor since Alexander Alfred Taylor, who served from 1921 to 1923.
Bell said the constitution gives the governor authority to make appointments to fill vacancies. To prevent the Republican governor from making appointments, the General Assembly developed the Tennessee Plan which was modeled after the Missouri Plan.
He said the worthiness of the plan could be debated, “But I’m going to go back to what the constitution says. Why did it mean one thing for 150 years and all of a sudden that meaning changed?”
Bell said if it’s legal for the General Assembly to change the method of selecting and retaining justices, it is just as legal for members of the Legislature to change the way they, or any other elected officials, are selected.