[The following is an Aug. 25, 2014, letter by a Cleveland, Tenn., attorney to a colleague explaining why he will not take part in a committee plugging Amendment 2 to the Tennessee constitution. Paul Dietrich is an amateur historian and practices civil law. Amendment 2 has been soundly misrepresented by the state’s republican and democratic establishment, particularly Gov. Bill Haslam and a host of allies who want to deny you the constitutional right to elect all judges. — DJT]
I deeply appreciate and feel honored that you asked me to serve on the newly found committee to promote the passage of the proposed amendment to Tennessee Constitution Article VI, section 3, dealing with the election of Tennessee appellate and supreme court justices. It is an important task that you and your committee undertake. ***
This is an issue that I have become fairly knowledgeable about over the past year or so. The primary reason that I have become so intimately involved and knowledgeable of it is because of some historical research that I have been doing on Judge Charles Fleming Keith. Judge Keith was the first Circuit Judge in our Judicial Circuit and served from 1820 – 1853.
He handled all the cases involving the Cherokee both before and after their removal to Oklahoma and decided some very important cases that were reported nationwide. Imagine all that notoriety from a mere trial judge. He was a remarkable man and did some really courageous things. Judge Keith was highly revered by the Cherokee because of his unshakable fairness to their rights both before and after their removal. He followed the letter of the law, and not public sentiment or political advantage, in rendering his judicial decisions. He stood up for what he knew was right no matter how unpopular his decision might have been to either the Cherokee or the white man – and was respected for it by both.
In researching Judge Keith, I became intimately familiar with the old Tennessee constitutions of 1796 and 1834 (the ones under which he served as judge). Our legislature used to elect all our trial and appellate court judges in Tennessee until the 1870 constitution was passed which gave the selection of judges to the people. Under the 1796 constitution judges were selected for lifetime tenure (good behavior) and the only way to replace one was by impeachment proceedings. In 1834 the constitution was changed setting term limits on judges but they continued to be elected by the legislature. The 1870 constitution changed all that and gave the vote to the people. This change in the constitution was made for the same purported reason that the legislature wants to change it today – politics.
1870 constitution boost for rights
However, in the case of our 1870 constitution, I do believe the change was for the better. Although it can be argued that under the1796 and 1834 constitutions that the people still had ultimate control of the election of judges because the people elected the legislators who in turn elected the judges, there was some recourse that could be taken by voting the legislator out of office and, of course, impeachment was always available.
Now the Tennessee Legislature is proposing a system of judicial selection much like the one that exists for federal court judges. The question in my mind is – How is this process any less political than giving people the vote? Our governor will always appoint the candidate who is of that governor’s political persuasion – just as the President does. That is the reason that our appellate court judges retire only when a sitting governor is a member of that judge’s political party. Well, you already know all of that. I do have a problem with politics in the judiciary. It should never be present. But it always will be. I don’t know how to solve that problem, but, in my opinion, it is not by the Constitutional Amendment that has been proposed.
Loss of people’s power
To me the greatest danger our society faces is the loss of the power of the people. It is the people’s vote that can correct the injustices that occur in the judiciary or anywhere else. Once they lose the right to select their public officials then they no longer have any power at all. I agree that most people are not well-informed enough to make decisions about judges; however, if an earnest push is made by concerned citizens, then the people can be taught how to choose the best candidate. No, taking the vote away from the people is something that I cannot support.
It has troubled me for years that we have the “retention vote” method of selecting our appellate judges and I have actively spoken out against it to anyone who would listen. There is absolutely nothing constitutional about the “retention vote” method of electing our judges, and there is no court anywhere that will ever convince me otherwise.
*** I could never live with my conscience if I were to espouse a position that I did not truly believe in. I will stand with Judge Keith on this one, and have the courage to do what is right and not what is politically to my advantage. I know my position will not endear me to any Tennessee judges, but I can live with that too.
Very truly yours, Paul H. Dietrich, attorney, Cleveland, Tenn.