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TN’s Attorney General Appointment Process a Key Retention Campaign Issue

Unlike in anywhere else in the country, the state Supreme Court picks Tennessee’s top government lawyer

While the decisions of Tennessee’s attorney general have been defended by the state Supreme Court, on Monday Chief Justice Gary Wade — one of three justices up for retention this year — tried to put some distance between the high court and those decisions.

According to the Times Free Press, Wade told reporters that although the Supreme Court made the decision of who the attorney general is, “once that appointment is made, the attorney general is captain of his own ship.”

Wade held the press conference, along with fellow Justice Sharon Lee and former Chief Justice Mickey Barker, to lay out the argument for the retention of himself, and Justices Lee and Cornelia Clark, all three of whom were appointed by Democrat Gov. Phil Bredesen, and are up for retention on Aug. 7. Wade had been scheduled to speak earlier Monday at a lunch meeting of the Hamilton County Pachyderm Club, but cancelled that appearance when the club also scheduled an opponent of retention to speak at the same meeting.

However, holding the justices accountable for the AG’s decisions is an appropriate course of attack, especially when those decisions run counter to the desires of the majority of Tennesseans, which is reflected in the Republican super majority in the General Assembly, said State Sen. Mike Bell, a Republican who chairs the Senate Government Operations Committee as well as being a member of the Judiciary Committee.

“As long as he’s appointed by the partisan Democrat Supreme Court, they’re going to continue to put in a partisan Democrat attorney general,” Bell said, and added that it’s significant that the state’s current attorney general, Robert Cooper, was the Tennessee Democratic Party’s own attorney prior to his appointment as AG.

According to the Tennessee Constitution, the attorney general is appointed to a term of eight years by the Supreme Court.

Tennessee is the only state in the nation that selects its AG in this manner. In 43 states, the position is selected by general election. In five states it’s selected by gubernatorial appointment, and in Maine the legislature selects the AG by secret ballot.

Attorney General Cooper’s term expires Aug. 31. According to spokeswoman Sharon Curtis Flair, Cooper has not indicated if he will apply for another term or not. Cooper took office Nov. 1, 2006, for an eight-year term.

Susan Kaestner, who is president of the Tennessee Forum and an active voice of opposition to the retention of the three Supreme Court justices, told TNReport last week the selection of the state attorney general has always been “a partisan political decision.”

“We disagree fundamentally with the idea that we have the most powerful appointed position in the state who is accountable to no one. He is accountable to someone. He’s accountable to the justices,” Kaestner said.

State Senate Republicans Brian Kelsey, chairman of the Senate Judiciary committee joined Sen. Bell, also chair of the Ad Hoc Committee on Judicial Accountability, in calling on Cooper to get Tennessee involved in the most recent legal challenge to the Affordable Care Act.

In the past, though, Cooper has avoided either challenging or supporting Obamacare because he’s concluded “Tennessee’s participation in the lawsuit would not have been an appropriate use of limited state resources” and would provide “no additional benefit to the state.”

Cooper’s decision not to challenge the Affordable Care Act, has been lauded by Justices Wade and Clark as being the right choice, both for the “taxpayer,” and because it’s “a federal issue.”

Bell disagrees with that assessment and thinks the state’s top lawyer should be standing up for what a majority of Tennesseans want.

“I think that the more states join, the better chance the lawsuit may have of being successful,” Bell told TNReport recently. “You know, if only two or three states join in, there would be very little voice, but if all 50 states join in, I think it would be tough for the Supreme Court, or any other court to ignore that.”

“The other issue going on here is that for the first time ever we’re having a competitive retention vote,” Bell added. “I think it’s absolutely a legitimate issue to hold these justices accountable for appointing an attorney general who refuses to fight for the people.”

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