Brian Kelsey responds with why he thinks his constitutional amendment is not going to run into issues.
Senate Joint Resolution 710 sets forth the method of selecting judges of the Supreme Court and of any intermediate appellate court. As of today, intermediate appellate courts include only the Court of Appeals and the Court of Criminal Appeals.
Under this resolution, the Governor has full discretion to appoint judges of the Supreme Court and of any intermediate appellate court. The words “by and at the discretion of the governor” are included to clarify that the Legislature cannot create a nominating commission or bind the governor’s appointment power in any way. The governor may, at his discretion, create a nominating commission to assist him in his appointments, but the Legislature may not. The current Judicial Nominating Commission codified in Tennessee Code Annotated Title 17, Chapter 4, Part 1 will be rendered unconstitutional as applied to judges of the Supreme Court and intermediate appellate courts if this resolution becomes part of the constitution.
After a judge is appointed, he must be confirmed by the Legislature before taking office. Confirmation may occur either by an affirmative act of the Legislature or by default. To affirmatively confirm an appointee, the House and Senate must both adopt a joint resolution of confirmation by a constitutional majority vote in each chamber. Confirmation or rejection may not occur by a joint vote like the ones referenced in Article III, Section 17 and Article VII, Section 3. Confirmation by default occurs if both the House and Senate fail to reject an appointee within sixty calendar days of either the date of appointment, if the appointment is made during the annual legislative session, or the convening date of the next annual legislative session, if the appointment is made out of session. The governor may convene a special session of the Legislature to affirmatively confirm a judicial appointee, but a special session will not affect the running of the sixty-day time limit on confirmation by default.
Affirmative rejection of a judicial appointee must pass both the Senate and the House of Representatives by a constitutional majority vote in each chamber within the 60-day time limit. Rejection of a judicial appointee will be controlled by rules of the Senate and House of Representatives and perhaps also by statute. Such rules or statutes may or may not set forth a process as follows. Rejection may occur through the passage of a joint resolution of rejection by a constitutional majority vote in each chamber, if such votes occur prior to the running of the sixty-day time limit. Rejection may also occur by a constitutional majority vote in each chamber against adoption of a proposed joint resolution of confirmation, if such votes occur prior to the running of the sixty-day time limit.
If a judge is confirmed to fill a vacancy, the judge shall take office immediately upon confirmation. If a judge is confirmed for a full term, the judge shall take office September 1, as set forth in Article VII, Section 5, or immediately upon confirmation if such confirmation occurs after September 1.
The word, "thereafter" is included prior to the mention of a retention election by the qualified voters of the state to show that there is a time lag between confirmation and retention election. Judges appointed and confirmed to a full term shall not be subject to retention election until the end of the eight-year term. No reappointment or reconfirmation is necessary at the end of the term. There are no term limits on judges of the Supreme Court or of intermediate appellate courts. Such judges may run for reelection multiple times.
In the case of a judge appointed and confirmed to fill a vacancy, after the judge has been appointed and confirmed, the retention election occurs at the next biennial August election recurring more than thirty days after the vacancy occurs, in accordance with Article VII, Section 5 of the constitution. If such biennial August election is not the election at the end of the term, then such judge shall also stand for another retention election at the end of the term, if the judge seeks to serve a full eight-year term. All references to "appointment" in Article VII, Section 5, when read in conjunction with the new language of Article VI, Section 3, shall be read to mean "appointment and confirmation" as applied to judges of the Supreme Court or any intermediate appellate court.
The method of retention election may be set by statute. A retention election may be in the manner of the current "retain/replace" ballot question or the previous "yes/no" ballot question, but a retention election shall not be a contested election with multiple candidates on the ballot. The Legislature may set out in statute notification requirements for running for retention election such as those that exist in statute today. For example, the statute may require a judge seeking another term by retention election on the August ballot to provide notice of such intention by January. Such notice requirements would allow the governor and the Legislature time to appoint and confirm a new judge prior to the beginning of the term beginning September 1, if the incumbent judge did not seek election for another term.
If a judge loses a retention election, he may not continue to serve in office beginning the first day of September next succeeding his election. The governor may not appoint and the Legislature may not confirm the same judge for the same judicial office unless another judge has served in the office in the interim. Instead, a new judge shall be appointed and confirmed for a full term in accordance with this resolution.
The final of the three new sentences being added to the constitution mirrors the current second sentence that is being deleted. The word "rules" in the current constitution is replaced with "provisions" to clarify that the legislative power set forth in the sentence may be exercised either by rule or by statute. Deleting "the provisions of" shortens the sentence without losing meaning. The sentence expands legislative power from carrying out Article VI, Section 2 to carrying out Article VI, Sections 2 and 3. Such legislative rules or statutes, however, must be made merely to carry out the sections and may not conflict with the sections. For example, the creation of a nominating commission or the ability to bind gubernatorial appointment in any way does not fall within the legislative authorization to carry out Sections 2 and 3 of Article VI. The words "is authorized" replace the current "shall have power" to imply such limitation and to shorten the sentence.
The final two sentences currently in Article VI, Section 3 remain in the constitution under this resolution. They continue to control the age requirement, residency requirement, and term length of Judges of the Supreme Court. The age requirement, residency requirement, and term length for judges of the Court of Appeals, the Court of Criminal Appeals, and any other intermediate appellate court created by the Legislature is left to statute under this resolution.