Host Leahy and All-Star Panelist Carmichael Dissect the Tennessee Constitution’s Method for Selecting an Attorney General for the State

Live from Music Row Wednesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy and all-star panelist Carmichael discuss the method in which the Tennessee constitution dictates the selection of an attorney general in the state.

Leahy: I wanted to turn to a couple of local stories. One is having to do with the attorney general selection here and the other Metro Nashville Public Schools making another bad decision. But I want to start with the attorney general. Here’s our lead story at The Tennessee Star.

And of course, as you know, in Tennessee, we have the unique method of selecting an attorney general, the only state in the union where the five Supreme Court justices pick the attorney general. That’s the method that we use here according to the Tennessee Constitution.

It’s been that way since actually 1835. We’re governed by the 1870 Constitution. It is a bizarre, I think, methodology, but nonetheless, it’s the methodology we have now, and it’s unlikely to change.

Carmichael: It’s our Constitution.

Leahy: It’s under our Constitution. That is correct.

Carmichael: And you’re a big supporter of Constitution.

Leahy: I am.

Carmichael: This is bizarre, but you support our Constitution.

Leahy: Absolutely. But the point is that I support also the American Constitution’s concept of separation of powers. Embedded in the Tennessee Constitution is a conflict with that. But nonetheless, there it is, and it’s not going to change.

And so now we have what I would call a fine attorney but a weak attorney general, from my understanding of what an attorney general should do – protect the rights of the state of Tennessee versus federal usurpations.

Herb Slatery, he was appointed in 2014 by the Tennessee state Supreme Court. His term is up on August 31st. He’s out of here. He’s not going to go for reappointment.

Now, the Constitution says it’s the state supreme court justices, the five of them, who pick the next attorney general. However …

Carmichael: So he has not reapplied.

Leahy: No.

Carmichael: He could have reapplied.

Leahy: He could have, but he chose not to. He chose not to. You got that right.

Carmichael: Are you having fun yet? (Laughter)

Leahy: Anyway, there will be a new attorney general and they will serve an eight-year term, and they will be picked by the five members of the state supreme court. Now, here’s the rub with that. By tradition, the state supreme court has apparently deferred to rubber-stamped, whoever the governor wants.

And that was the case with Herb Slatery, who was a fine attorney but was kind of obscure, and was picked by Governor Haslam, personal friends with Governor Haslam, and in essence, with very perfunctory public hearings of eight finalists, that’s who they picked.

Carmichael: May I stop you and ask you a couple of questions?

Leahy: Yes, sir.

Carmichael: If somebody wants to be the attorney general, they apply for the job.

Leahy: Yes. Any attorney in Tennessee who’s qualified to be an attorney in Tennessee can apply for the job.

Carmichael: Do they apply to the supreme  court?

Leahy: Yes. Okay.

Carmichael: So when you say that the supreme court rubber-stamps the governor’s choice, under our constitution, the governor is really not supposed to under the constitution and the language of the constitution, the governor’s not really involved in the process?

Leahy: Under the language of the constitution the governor really has no role in the process.

Carmichael: Yes. So this, to me, since we have a constitution and we have a method, then the method should be that the supreme court follows the dictates of the constitution and makes the choice themselves [and] not be a rubber-stamp.

Because if they’re a rubber-stamp for the governor, and this is true, no matter who the governor is, then they are subverting the language of our constitution.

Leahy: I would agree with that. And I think if you were to ask the Tennessee State Supreme Court justices that they would probably say, yeah, that’s probably right. And by the way, one state supreme court justice, Jeff Bivins, is up for a retention election August 4th.

We’ve had some conversations with him. Very nice fellow, by the way; judicially, I think his decisions have been very good, but we’ve invited him to come on the program, and they’ve said he will come on the program, but he’s going to wait for a period of time because since he’s up for a retention election, once he does one interview, he’s going to have to do interviews with everybody.

We are here, May 25th, and the election is on August 4th. Probably some time next month we’ll have him in here. Okay. And we’ll ask him this question, I think, on the issue of his judicial philosophy and practices.

He fits with sort of our worldview, I suppose you could say. But we want to talk to him a little bit about openness and transparency in the process by which the next attorney general is selected.

Carmichael: I think that’s a very good discussion to have.

Leahy: I think it is, too. And I think he’ll be very open to having that discussion. So we’ll see how that all plays out. We’ll talk about the attorney. Read the story.

Sources say Governor Lee believes his pick for attorney general, Brandon Gibson, chief operating officer of the state and no friend of conservatives, is already a done deal with the Tennessee Supreme Court. We’ll see.

Carmichael: See, that would be a shame.

Leahy: It would be.

Carmichael: And it doesn’t matter who he is. I don’t really care.

Leahy: It’s a she.

Carmichael: I don’t care who she is. That’s not the way that our constitution, whether we like it or not, says that the attorney general should be selected.

Leahy: Exactly right.

Carmichael: It’s not whoever the governor wants, the supreme court rubber-stamps.

Leahy: No, the constitution says it’s those five supreme court justices, and they alone, who make the decision.

Carmichael: And they should be treating this as if it is a court case.

Leahy: Exactly.

Carmichael: And a governor should not be weighing in.

Leahy: I’m not sure. I think it’ll be open and transparent, and they ought to have hearings like any attorney general in the United States. I agree.

Carmichael: I agree. That’s where I’m heading. That would be the natural way of doing it. If you’re not doing it in smoke-filled rooms, which is how it seems to be being done …

Leahy: In the past.

Carmichael: And in the present. If this governor is selecting somebody and recommending that to the supreme court and the supreme court is more or less going to just rubber-stamp that choice, that’s not the way it is supposed to be.

Leahy: I completely agree. We’ll see how it plays out. That’s one of the reasons why we’re doing this story.

Carmichael: And this is not, this doesn’t have anything to do with this current governor or his selection. I just think that’s not the way the board game is to be played. That’s not what the rules say.

Listen to the conversation:

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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.


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One Thought to “Host Leahy and All-Star Panelist Carmichael Dissect the Tennessee Constitution’s Method for Selecting an Attorney General for the State”

  1. 83ragtop50

    Just another reason to jettison Lee ASAP.