Unless the Tennessee General Assembly takes action before the end of this legislative session to preserve the Tennessee Plan, the state could lose the unique arrangement that helps assure the quality and independence of the highest courts in Tennessee's judicial system.

Some 30 years ago, Tennessee adopted a major reform in the selection of judges, called the "Tennessee Plan." Under this arrangement, state appellate judges are no longer elected by the people. Instead, judges for the Supreme Court and other appeals courts are initially selected by the governor from candidates recommended on the basis of merit, but sitting judges periodically are subject to retention votes in which people vote "yes" or "no" on the retention of each judge.

Judge selection and retention under the Tennessee Plan is a bewildering process for citizens, but it has been successful in depoliticizing the state's judiciary. Today I learned that the Tennessee Plan is subject to a sunset law -- the two commissions that make the process work are scheduled to "sunset" on July 1 unless the legislature acts to continue their existence. Two sets of bills to continue the Judicial Selection Commission (which makes recommendations on candidates for judgeships) and Judicial Evaluation Commission (which evaluates the performance of each sitting judge and publishes its findings before a retention election is held) have been introduced in the General Assembly, where they are awaiting consideration by the House and Senate Government Operations committees. HB2141/SB2013 (introduced last year) would extend both sunset dates until 2014, and the combination of HB3216/SB2432 and HB3225/SB2433 (introduced this year) would keep the commissions around until 2012.

The Tennessee Plan has its opponents, who say that it takes power away from the public and gives it to lawyers' organizations [1]. That's effective rhetoric, but the fact of the matter is that in other states the selection of judges by popular vote results in selections based on money, ideology, and campaign promises, not on legal ability and impartiality.

To protect the independence of our judiciary, the Tennessee Plan shouldn't be allowed to quietly disappear.