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Errors, Omissions, and the Tennessee Plan

40 Pages Posted: 15 Aug 2008 Last revised: 13 Jan 2009

Brian T. Fitzpatrick

Vanderbilt Law School

Date Written: August 14, 2008


In the Spring 2008 issue of the Tennessee Law Review, I wrote an essay questioning whether Tennessee's merit system for selecting appellate judges - the Tennessee Plan - satisfies the requirements of the Tennessee Constitution. The Tennessee Constitution requires all judges to be elected by the qualified voters of the state, yet, under the Plan, all appellate judges are initially selected by gubernatorial appointment and then retained in uncontested referenda. I argued that both the appointment and retention features of the Plan are unconstitutional, and I recommended that the legislature refuse to reauthorize the Plan when it expires in June of 2009.

Two very distinguished authors, Penny White, a former Tennessee Supreme Court Justice, and Malia Reddick, a researcher at the American Judicature Society, have published a colorful response to my essay. I have the greatest respect for both Justice White and Ms. Reddick, and I very much appreciate the time they took to read my essay and to comment on it. Unfortunately, however, I found much of their response more colorful than careful. In this reply, I explain why Justice White's constitutional arguments did not cast doubt on any of the conclusions in my original essay. I also explain why Ms. Reddick's policy arguments may have overstated the evidence in favor of so-called merit plans for judicial selection.

Keywords: Tennessee Plan, merit selection, judicial selection, constitutional law

JEL Classification: K10

Suggested Citation

Fitzpatrick, Brian T., Errors, Omissions, and the Tennessee Plan (August 14, 2008). University of Memphis Law Review, Vol. 39, No. 1, 2008; Vanderbilt Public Law Research Paper No. 08-49. Available at SSRN:

Brian T. Fitzpatrick (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-4032 (Phone)

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