Tennessee Star Report Host Leahy Explains Tennessee’s Separation of Powers Problem

Live from Music Row Thursday 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 welcomed all-star panelist Clint Brewer in-studio to discuss the lack of transparency in choosing Tennessee’s attorney general and how the selection process currently operates without adhering to the state’s constitution.

Leahy: Clint Brewer, also our panelist in-studio, I want to continue on the Tennessee Supreme Court. And I think we have a flaw in our constitution, but it is in our state constitution. But the flaw was first put in the second constitution of 1835, in which the members of the Supreme Court would select the attorney general and reporter.

That’s the job itself. The two aspects of the job, to be the attorney general of the State of Tennessee, which is basically the lawyer for the state, who among other things is charged with defending the rights and privileges of the state itself and of the citizens against the overreaches and the usurpations of the national federal government.

That to me is a very big deal. But the other element is to be a reporter. What does that mean? Well, to report the Supreme Court decisions.

Now it makes sense that the Supreme Court of Tennessee would be able to select its own reporter. It doesn’t make any sense from a separation-of-powers perspective by the foundational principle of our national Republic embodied in our national Constitution, that the judicial branch and the legislative branch, and the executive branch should have separate roles and duties and responsibilities that have checks and balances against each other.

But here in Tennessee, since 1835, and reconfirmed in the 1870 constitution, which we are currently governed under, the attorney general of the State of Tennessee is selected solely by the five members of the Supreme Court. Every other state officer, the governor is elected by the people.

The lieutenant governor, traditionally the speaker of the State Senate and then other statewide offices, the secretary of state, the controller, and the treasurer are elected by the Tennessee General Assembly.

We have a very bad separation of powers problem here, because giving the judicial branch the executive role of picking the attorney general – it would have James Madison, who had, I think in his last years when the first constitution was passed in 1835, it would have him apoplectic about the violation of the separation of powers. Yet that’s what we have right now.

Brewer: It’s been a source of debate and discussion in the state for decades.

Leahy: It has been. I’ll tell you, I think the Supreme Court has the authority under the state constitution to do that selection however it pleases.

Brewer: And the Tennessee General Assembly also has the authority to take it away from them. You can have a constitutional amendment out there to change it, which has been attempted before.

Leahy: Well, yes, but not on its own. It has the authority to put, the constitutional amendment would then be put before the people, right?

Brewer: Well, yeah, it’s an attempt, and let’s be clear, Tennessee has several offices that are not elected, and we’ve talked about this before, unlike other states.

Leahy: But my point is, in those offices, like the secretary of state, there is accountability to the people because they’re elected by the Tennessee General Assembly.

Brewer: Right. In a public process and in a nominating process.

Leahy: And this gives the legislature power in that arena. And the attorney general is essentially part of the executive branch. If you wanted to be consistent, that power should not reside solely within the Supreme Court, and yet it currently does. The efforts in 44 other states …

Brewer: It’s kind of a collaboration between the executive and the judicial branch.

Leahy: But let me just, stop for a moment. I understand.

Brewer: I’m not defending it.

Leahy: No, I understand.

Brewer: Technically, the governor puts forward the nominee.

Leahy: No. No, that’s been the practice. But that’s not in the constitution.

Brewer: Right. That’s where the state Supreme Court accepts nominees from.

Leahy: Right. The point is that the constitution itself simply says that the Supreme Court picks them and sort of the wink-wink, the behind-the-scenes process, has been whoever the governor wants has been, at least in 2014, in essence, rubber-stamped by the Supreme Court.

That is not transparent, and there’s no role whatsoever for the Tennessee General Assembly in that process. This, I think, is fundamentally wrong. And the Supreme Court has the authority because the constitution just says you get to pick.

They can do it however they want. And they’ve been doing it, in my view, in the wrong way. And the wrong way has been they’ve been very secretive about the process. They haven’t been open about the process.

The last time around, anybody can be nominated for this. Anybody can nominate themselves who is an attorney in the state.

The Supreme Court then announced eight finalists, and it held, last time, perfunctory hearings, like, 10 minutes, where the eight candidates were considered, but behind the scenes, basically, they rubber-stamped the governor’s pick, Herb Slatery.

Brewer: So you think they should open the process up?

Leahy: It should be absolutely transparent, which it currently is not. We’ve been asking the Supreme Court for two months to tell us their process. Not a word from them about the process.

Brewer: Wow.

Leahy: Okay, that’s number one. They should make it transparent. Who can apply? How do we narrow it down? But most importantly, will this attorney general … what is the philosophy of this attorney general in defending the Tenth Amendment rights of the state of Tennessee and of the citizens of Tennessee?

There should be lengthy and robust hearings where multiple questions about that are posed to these candidates in public. That’s my view of how it should be transparent.

We’ve ended up in a situation where we have – and I’m in favor of a very aggressive attorney general pushing back at every opportunity against usurpations by the federal government.

Our current Attorney General Herb Slatery was the governor’s pick and rubber-stamped by the Supreme Court – rubber-stamped in perfunctory hearings, which is, I think, absolutely wrong in 2014.

Brewer: But let’s also back up. I don’t disagree with anything you said about the lack of transparency, the need for transparency, and having a more robust process for creating a pool of candidates. But I will say, and I will defend this until the day I die, they did get the process right, because Herbert Slatery is an excellent attorney general.

Listen to the interview:

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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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