One of the most-intensely debated questions in our system of government is the means of selecting judges:  Should they be appointed or elected?  The current situation satisfies no one, and the arguments seem evenly divided.

It gets back to this: Our government derives its authority from the people, who are sovereign and have the God-given right (or natural right, for our agnostic and atheist friends) to elect their governors themselves, based on whatever criteria they deem good and sufficient.  It says so, right there in the Declaration of Independence, and is instituted in the Constitution. 

Or does it?  Why, then, does the Constitution include a Bill of Rights?  It says, in essence, that it doesn’t matter what “The People” think about certain subjects – freedom of speech, religion, right to bear arms, etc. – they are beyond dispute.  The Bill of Rights is there specifically to protect everyone else from the “tyranny of the majority”, which can be pretty tyrannical. (Think of slavery; if we’re honest about it, abolition was probably a minority (even if growing) position right up to the Civil War.)  The only effective way to maintain these supposedly-inalienable rights is through an independent court system with judges not beholden to “The People”, but dedicated to the law.  And that, quite frankly, is not just undemocratic, it is explicitly and intentionally anti-democratic.

That’s one side of it.  But what to do about a judge (no matter how he was selected, or by whom) whose understanding of the law is so far afield of “The People” that his decisions are intolerable? Judicial abuses are common enough that it’s hard to argue against the contention that there needs to be some accountability that’s not just theoretical; it shouldn’t be all but impossible to remove a bad judge.

And so the dispute goes.  An immovable object and an irresistible force, forever in conflict.  And don’t worry, I’m not going to try to resolve it with my Solomonic wisdom, which is in short supply at the moment.  Alright, at all moments.

Which brings us to the Tennessee state legislature’s latest attempt to “improve” our judicial system.  Here’s the summary of the law.  It establishes a “court of special appeals” vested with exclusive authority to rule on the Constitutionality of state government actions, which are now heard by the chancery court in Davidson County.  Its three judges would be selected from the state’s grand divisions, initially chosen by the governor, and then subject to statewide election starting in 2022.

Its sponsor, Senator Mike Bell of Riceville, is bluntly honest in his reason for offering the bill.  He thinks it makes no sense for the chancellor from Nashville, Davidson County, a little blue island in a sea of bright crimson red, to be empowered to rule on the Constitutionality of government actions.  Bell thinks that a judge who has no accountability to the state as a whole should not be empowered to make rulings that affect the state as a whole.

In other words, his reasons are political, not in the narrow partisan sense, but in the broad, democratic sense that all officials need to be accountable to the electorate.  Which is a rather odd place for a Republican to be, since they have historically been more sympathetic to the “independent judiciary unbeholden to the people” argument.  Perhaps no longer, though, not in the party’s current right-wing populist iteration.

Bell’s argument might carry more weight if it weren’t for the controversial and divisive partisan issues in play.  The Davidson court has repeatedly shot down Republican efforts in recent years on such matters as a school voucher program and voter registration, and frustration with this court’s actions is what led to the bill.  This has led to withering criticism that the problem isn’t the court, it’s that the Republican supermajority has been trying to pass unconstitutional laws.  The critics, though, would carry more weight if they weren’t such Democratic partisans, supporting an agenda far to the left of most Tennesseans and reflexively opposing anything with an (R) beside its name, regardless of the merits.  Most of the criticism, it seems to me, is little more than partisan griping and nit-picking, mixed with hysterical warnings of impending right-wing domination of Tennessee’s courts – which is more than a little overblown and self-serving.

As the election of Donald Trump proved, the people understand how important the selection of judges is.  Many conservatives chose to support Trump, in spite of their misgivings, due to his promise to nominate originalist judges with a constrained understanding of government and the judiciary itself.  But whether this effort fits that bill, or is just a partisan legislature attempting to end-run a partisan court standing in the way of the Republican agenda, isn’t clear.  The Republicans got their way, of course; the Democrats are helpless to stop them.  Let’s hope they chose wisely.

• Kenneth D. Gough © 2021