A move for “transparency” and legislative control is butting heads with the concept of separation of powers in an effort to change the way Tennessee selects its top law enforcement officer.
With a key vote Tuesday, state Sen. Ken Yager, chairman of the Senate Republican Caucus, is gaining momentum for passage of a constitutional amendment that would insert the Legislature into the process for confirming the state’s top legal counsel.
The Senate Judiciary Committee approved Yager’s resolution 6-3 Tuesday, sending it to the Calendar Committee to be scheduled for a floor vote. Two Republicans, Sens. Jon Lundberg of Bristol and John Stevens of Huntingdon, voted against the measure, with Lundberg raising the possibility that the Legislature would be creating the position of “governor light,” or a governor in waiting, someone who would spend more time raising money and politicking than handling legal affairs.
The resolution moved through the General Assembly in 2019 and if approved by two-thirds of the Legislature this year would be placed on the ballot in 2022 for a referendum by voters. To take effect, it would require a majority vote of those who participate in the gubernatorial election.
Yager, a Kingston Republican who has been working on the amendment for five years, says the driving force is to bring “transparency” to the attorney general’s selection. Historically, the Supreme Court has selected the attorney general to an eight-year term in private chambers, keeping voters in the dark as to how the justices vote.
Under Yager’s plan, the Supreme Court would require a six-year appointment to be made in open court with a recorded vote. The second part of his resolution would allow the Legislature to confirm or reject the court’s selection within 60 days. If the Legislature, which is controlled now by a Republican supermajority disapproves, the matter would go back to the Supreme Court for another pick.
Yager contends giving the Legislature oversight would enable the state to be “true to the intent of the 1870 Constitution, which at that time, expected that an elected official would have a role in that process.”
“We’ve tried to work this out to respect the Supreme Court’s historic role in this but also to give elected officials some oversight over what could be the most important appointment in this state,” Yager told the Tennessee Lookout.
Yager told the Senate Judiciary Committee Tuesday he wants to “bring some sunshine” to the selection of one of the state’s most important posts.
Former Tennessee Supreme Court Justice William Koch and attorney Paul Ney both spoke against the proposal Tuesday, saying it would create too much opportunity for partisanship within the Attorney General’s Office. They pointed out the Legislature has checks in place over the office by approval of its budget.
Koch pointed out that a Democratic attorney general in 1979 persuaded a Democratic lieutenant governor to have a Republican governor-elect, Lamar Alexander, sworn into office early to stop Gov. Ray Blanton from “signing more corrupt pardons.”
Senate Judiciary Chairman Mike Bell, a Riceville Republican, said he appreciated Koch’s stories but raised the question: “I want a reasonable explanation why there wasn’t a Republican attorney general for 140 years if partisan politics wasn’t a part of it.”
Koch responded that “self-selection” likely played a role but pointed out the Supreme Court managed to find strong candidates who put aside politics.
Ney, a Republican, also pointed out, “We don’t fix that problem by swinging the pendulum to the other side.”
The Attorney General’s office has a budget of $40 million and about 350 attorneys. Attorney General Herbert Slatery is requesting $700,000 more for next year’s budget to add five attorneys to handle a spate of lawsuits brought about by legislation. The governor’s budget also includes $7 million total for outside counsel and court settlements for this year and fiscal 2021-22.
But while Yager may be driven by the desire to make the selection process more open, critics of his legislation say giving the Legislature authority over the Supreme Court’s nomination threatens the separation of powers in Tennessee.
Senate Minority Leader Jeff Yarbro argues the person who enforces the state’s laws should be unencumbered from the body that makes those laws.
“Putting the Legislature in charge of selecting the attorney general is the sort of worst-case scenario for how to structure the impartial administration of justice,” says Yarbro, a Nashville Democrat and an attorney.
The Supreme Court system for selecting the attorney general is designed to create a nonpartisan and independent position committed to the law, says Yarbro, also worried about concentrating power in the General Assembly.
Putting the Legislature in charge of selecting the attorney general is the star of worst-case scenario for how to structure the impartial administration of justice. – Sen. Jeff Yarbro, D-Nashville
The drive to change the selection method began when Ron Ramsey served as lieutenant governor. He stepped away from the Legislature in 2017 and is now a lobbyist.
At one time, an elected Supreme Court picked the attorney general, but since becoming appointed, the Supreme Court continues to select the legal counsel, Ramsey points out.
Ramsey, a Republican, contends the Legislature “did a very good job” over the years of appointing Tennessee’s constitutional officers, the comptroller, treasurer and secretary of state, and he sees no reason why it can’t continue with the attorney general.
“It’s a better way of maintaining the independence than the attorney general being appointed by the Supreme Court and then arguing cases in front of the very body that appointed him,” Ramsey says.
In contrast, Yarbro believes the idea of independence and partisanship has “been undermined” somewhat in recent years.
But rather than give the Legislature the keys, Yarbro favors keeping the current selection method or holding a statewide election for the job, out of concern the job could fall to an ideologue rather than someone focused mainly on enforcing state laws and providing legal advice.
Attorney General Herbert Slatery went down that road, to a degree, during the 2020 presidential election when he joined Tennessee in a Texas challenge of President Joe Biden’s win over now-former President Donald Trump. Slatery told lawmakers he joined 17 other states in asking the court to determine whether electors were selected in accordance with rules established by legislators.
Slatery said his office wanted to make sure the challenge had a legal basis and wasn’t “totally partisan.” Ultimately, he felt an argument made by the state of Missouri was “well done” and he decided to join it. Otherwise, he wouldn’t have done so, he said.
Nevertheless, Yarbro believes Slatery got too close to the partisan line with that decision.
“I don’t think the AG should ever be engaging in the sort of partisan and ideological warfare litigation like the litigation to overturn the results of the presidential election that the attorney general joined last fall. But if that’s going to happen, then the attorney general should be responsive to the people of this state, not to the legislators,” Yarbro said.
He points out, too, that the attorney general’s job is not just to defend the constitutionality of Tennessee law but to advise the General Assembly about the constitutionality of legislation. On Slatery’s watch, the number of legal opinions plummeted in recent years, from more than 80 in 2015, his first year on the job, to 20 in 2019 and 17 in 2020.
If the attorney general is beholden to the Legislature, though, and subject to removal, the state’s top law enforcer might have difficulty telling lawmakers what they don’t want to hear.
“I think that creates an independence problem that’s troubling,” Yarbro said.
Ramsey, though, has little concern about knocking down a wall in the separation of powers and pointed out when he was lieutenant governor, any time the state was sued, the Legislature had no choice who would represent the state as attorney general.
“I just thought that made no common sense,” Ramsey says.