If Tennessee’s Supreme Court Selects Its AG, It Should Be Held Accountable For His Performance

George Scoville Media Strategist
Font Size:

Tennessee has many quirks that have become the standards by which I have judged society at large over the course of my life. From the cool misty mornings in Smoky Mountain National Park in the east, to Monteagle Mountain atop the Cumberland Plateau in the mid-state area, right down to the dry-rub smoked ribs at Rendezvous in Memphis, these experiences unique to Tennessee have helped me define beauty, majesty, and what I consider to be “the good life” after spending almost all of my natural life as a resident of the Volunteer State. I am certainly glad to be living here again after almost five years in the nation’s capital.

As a political observer, though, I’m troubled by a peculiar function of state government: Tennessee is the only state in the Union whose Supreme Court selects its Attorney General. That’s not by accident, either; Article VI, Section 5 of the Tennessee Constitution directs the Supreme Court to appoint the AG to an eight-year term. By comparison, 43 other states’ attorneys general are elected by popular ballot, five states’ governors appoint their attorneys general, and Maine’s legislature elects its attorney general. What separates Tennessee from all those other states, aside from procedural differences and constitutional mandates in selecting the attorney general, is that ours has the lowest relative level of accountability.

The only time citizens attempted to amend this law – a proposal to elect the attorney general by popular vote offered at the constitutional convention of 1977 – the proposal ultimately failed and was considered to be the most controversial amendment offered at the convention. The state constitution was designed to insulate the attorney general selection from the politics of the day, so Tennesseans resoundingly rejected subjugating the office to the changing whims of the masses.

Current Tennessee Attorney General Robert Cooper received an appointment in 2006, but only three of the sitting judges – Chief Justice Gary R. Wade, and Justices Janice Holder and Cornelia Clark – were on the bench of the state’s highest Court at the time. Holder is stepping down from the bench when her current term expires in August. One of the remaining two, Justice William Koch, also plans to retire before this year’s August elections. Other states’ AG selectors are lawmakers and governors: the types of officeholders many of us instinctively think of when we think about “democracy” or “elections” or “accountability,” and as such, attorneys general in other states are more accountable to citizens.

The last several judicial elections in Tennessee saw meager turnout rates of 14.89 percent in 2004, 29.01 percent in 2006, 14.92 percent in 2008, 29.14 percent in 2010, and 18.63 percent in 2012, compared with much higher turnout in the November elections for each of those years: 66.32 percent49.97 percent66.34 percent41.32 percent, and 61.86 percent, respectively. That’s a problem, because given the higher turnout rates for elections for state legislators and the governor in each year, the results of the November elections far better approximate what Tennesseans think about public policy at a given moment than do the results of August elections, when Tennessee Supreme Court justices only occasionally face retention elections.

After the Tennessee GOP won majorities in both the state House and Senate in 2008, controlling both chambers for the first time since 1868, Republican Governor Bill Haslam won his office by a nearly 2:1 margin in 2010, the “Tea Party wave election” year. Republicans further solidified their majorities in the General Assembly in 2010 and 2012. Yet as Victor Ashe reminded me recently, when Tennessee Republicans asked General Cooper to join lawsuits against former Department of Health and Human Services Kathleen Sebelius to block federal intervention in the Tennessee’s markets for health care and insurance through the so-called Affordable Care Act, the attorney general simply refused.

To whom is General Cooper accountable? Is he accountable to the Republican legislature and governor clearly and duly directing state policy to stave off Obamacare’s incursions into the local economy from Washington? Is he accountable to the taxpayers fed up with government overreach, who repeatedly sent those Republicans and more from the far corners of the state to Nashville over the last few election cycles? Or is he only accountable to the Democratic justices on the Supreme Court who appointed him eight years ago?

Ultimately, it’s up to voters to show up on election day if you want an accountable system, as Alexis de Tocqueville might say. So how do we get voters to become more invested in judicial races? A number of different reforms less radical than subjecting the attorney general selection to a popular vote could make the Supreme Court more directly accountable for acting recklessly on the job, thereby raising the stakes of judicial elections and boosting turnout: public censure, votes of no confidence, special judicial elections, a reformed Judicial Performance Evaluation Commission process, etc. Those are all matters worth consideration.

For the time being, however, voters – and only voters – can hold the Supreme Court accountable for General Cooper’s obstinacy by standing up and being counted during this summer’s judicial elections. It’s only equitable to hold the Supreme Court directly accountable for the attorney general’s behavior; you can bet dollars to pennies that Tennessee Democrats would hold this General Assembly and governor accountable at the voting booth if they had dared to select an attorney general with the gall to sue the Obama administration over Obamacare. The question is: will conservative voters hold these justices accountable for appointing an attorney general who refused to do the same?

George Scoville is a public affairs strategist and occasional blogger in Nashville, Tennessee.