Document Type


Publication Title

University of Memphis Law Review

Publication Date


Page Number



Tennessee Plan, judges-selection and appointment, constitutional law, merit selection


Constitutional Law | Judges | Law | State and Local Government Law


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.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.