Erik Schelzig, Associated Press
NASHVILLE, Tenn. — When the top three Republicans in the Statehouse coalesced behind a plan to cement Tennessee's current selection process for Supreme Court justices into the state constitution, there seemed to be a smooth path ahead for getting the measure before voters in 2014.
Two months later, their proposal has made little progress as some Republican lawmakers have embraced a rival proposal, while others want to allow contested elections to take place.
A proposal is advancing in the Legislature to impose a federal-style system of having the governor make nominations to the high court's bench, and then giving lawmakers the power to confirm or reject them. Meanwhile, the sponsor of another bill calling for the popular election of appeals judges in August 2014 says he is still advocating for the measure that could come up for a key House committee vote in the next two weeks.
Under the current Tennessee judicial selection method, a commission nominates judges, the governor appoints them and voters cast ballots either for or against keeping them on the bench. While the system has withstood legal challenges, critics say it conflicts with language in the state constitution that says Supreme Court justices "shall be elected by the qualified voters of the state."
Even if Gov. Bill Haslam, House Speaker Beth Harwell and Senate Speaker Ron Ramsey have their way and pass the first step of the constitutional amendment process this year, they face an even tougher hurdle in the next General Assembly when it would have to pass both chambers by a two-thirds vote.
Haslam told reporters last week that there's no need to panic over the fate of the measure, though he said he'd entertain elements of the legislative confirmation proposal if that's what makes lawmakers more comfortable.
"I'm quite frankly OK with that that approach," he said. "I'm not in favor of popular elections — either the federal model, or taking what we do in Tennessee and providing clarity. Either one of those works."
Harwell said there's still ample time to move the judicial selection measure through the House.
"I think most of our caucus believes that our current system works well, but want to make it constitutionally sound," the Nashville Republican said.
Ramsey said the final version of the measure will likely be a combination of the current system and the confirmation process.
"But the bottom line is we don't want the Supreme Court justices running for office, and they're appointed on some merit-based process," said Ramsey, R-Blountville.
But Rep. Glen Casada, R-Franklin, said he still plans to move ahead with his bill to allow the contented elections of Supreme Court justices. Those elections would take place in August 2014 — two months before any proposed constitutional amendment would go before voters.
Casada said in a phone interview that he agrees with the concept of having voters decide the future of judicial elections and that he will support whatever version of the constitutional amendment becomes the consensus choice.
But he said he will oppose the measure when he goes to the polls in November 2014.
"I'm going to support giving the voters of Tennessee the option to change the constitution," he said. "But my legislation puts into code that we elect them until the people change the constitution."
While Casada's acknowledged his proposal is opposed by the governor and the speakers, he called it a "respectful disagreement."
The Senate Judiciary Committee last week voted 5-2 to advance Sen. Brian Kelsey's resolution to call for legislative confirmation of gubernatorial appointments to the bench.
Sen. Tim Barnes, D-Clarksville, said he's concerned that if Kelsey's proposal is approved, that state's system could mirror some of partisan issues that have become part of the federal appointments
"It's the old question of how far outside qualifications do you get in to? Is it overly politicized? Are there litmus tests?" he said. "If this is something that we're doing new, it's an opportunity to perhaps limit some of the inquiry during the confirmation process."
Kelsey, R-Germantown, didn't entertain any adjustments to the measure.
"If you're not in favor of the federal process, then you're not in favor of this resolution," he said during the committee hearing.
For the most part, Democrats have taken a back seat to the handwringing among Republicans about what to do about judicial elections.
"I'm just sitting back and watching that right now," House Democratic Caucus Chairman Mike Turner of Nashville said with a laugh. "We'll just see what happens."
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