Live from Music Row Monday 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 Professor John Dinan of Wake Forest University to comment upon the AG selection in the state of Tennessee and suggest possible remedies.
Leahy: We welcome to our newsmaker line Professor John Dinan of Wake Forest University, who is an expert on state constitutions. Welcome, Professor Dinan.
Dinan: Thank you. It’s good to be here.
Leahy: Well, you have a PhD from the University of Virginia, right near Monticello, of Thomas Jefferson and Montpelier of James Madison. You’re an expert on state constitutions.
I have a question for you about the state constitution here in Tennessee. It’s the third version of the constitution passed in 1870. It had the same element as the one in 1835. And let me state this and see if you agree with me or if you’ve got a different viewpoint. I think it’s a constitutional flaw in the state of Tennessee’s constitution violating the national constitutional principle of separation of powers, that the selection of the attorney general to an eight-year term here in Tennessee is the responsibility of only the Tennessee Supreme Court. There’s no role for the Tennessee General Assembly in that. What are your thoughts on that, Professor Dinan?
Dinan: Thank you for that question. Here’s the way that I would put it. State constitutions have a lot of freedom to deviate from the national constitution. The national constitution sets up a certain way that judges are selected.
State constitutions can set up all kinds of different ways, and the same thing applies to the state attorney general. Forty-three states say, we’re going to popularly elect our state attorney general, and then five states say, we’re to appoint the attorney general by the governor.
And then one state, Maine, says the legislature is going to appoint the attorney general. Tennessee, then, is unique in having the Supreme Court do that.
The way I would put that is that no other state has chosen to follow Tennessee’s model. That probably says something about the models that other states have found far more helpful for actually guaranteeing separation of powers.
Leahy: A very judicial response. Judicious response.
Carmichael: Very PhD. (Chuckles)
Leahy: Very good. I like that answer. That’s Crom Carmichael, by the way, who’s our all-star panelist.
Carmichael: Now, if you are advising a state that had no constitution based on your understanding, because that was a great answer, by the way, but if you are advising a state that had no constitution and they came to you and they said, how should we select our attorney general, based on your experience and observation, what would you advise?
Dinan: My answer stems from the importance of state attorneys general in the current period. There was a time, let’s say 20 years ago, when attorneys general, the states just did not get a lot of popular attention.
They would go about their business. They would defend the state when the state was sued. They would help and file criminal appeals, but they weren’t really national officials in a way to get national attention.
But in the last 20 years, that’s changed dramatically. State attorneys general are now high-profile affairs; given that, there’s something to be said for allowing the people of the state to directly choose the state attorney general.
Alternatively, you could have the governor make the appointment, say, all the people are going to choose the governor, and then we’re going to let the governor choose the cabinet or the attorney general.
But there’s a lot to be said for following the model that 43 states do, and say, this position is so important. I want that position to be chosen by the people and accountable to the people of the state.
Leahy: Now, the practical circumstance here in Tennessee is that for some reason, constitutional amendments to the state constitution to provide for direct election have failed and are unlikely to change.
Right now, the issue is, the current attorney general said, I’m leaving on August 31st. The Supreme Court has started the process of identifying candidates for this job. Last time, basically, it was very perfunctory.
It wasn’t very transparent. And what they did, in fact, was they simply rubber-stamp the governor’s pick even though there’s no constitutional element.
The Tennessee General Assembly is not very happy about that. To me, Professor Dinan, I think if you really believe in the separation of powers, that concept that James Madison put forward so articulately in his defense of the Constitution and the creation of the Constitution, I think there should be a role for the Tennessee General Assembly in this process. Your thoughts?
Dinan: Let me just stop for a minute on the constitutional amendment option. Let me talk about why I think that’s potentially viable.
That is, it is true that the Tennessee constitution is not amended very frequently, and yet there are four constitutional amendments on the ballot this year, coming up, that would deal with matters such as union policies, ministers serving in the legislature, and various other measures, so these matters can get to the ballot.
And if we go back eight years ago, and this is notable, Tennessee just in 2014 reconfigured how they select their state Supreme Court judges.
They had done it one way. The people said we want to change this along with the legislature. And that got through a constitutional amendment. So I wouldn’t completely put it aside … the politics of this, whether this can actually get approved, but I would at least open things up because there’s a model in Tennessee already for changing institutional structures and doing so effectively.
Leahy: Very good for eight years from today. (Laughter) Not good for today, right?
Dinan: And let me get more directly to your question and what role does the legislature play given the current situation? Certainly, the constitution sets up certain structures that the legislature cannot adjust on its own other than to accomplish amendment.
But legislatures also have ways, through statutes, to prescribe the rules for the office of the attorney general, and to provide guidance for the office of the attorney general. So that’s where I would look for the legislative role given this current constitutional structure.
Leahy: That to me is exactly on point because we looked at this, and the state constitution does not really define the duties of the attorney general. The state constitution simply says, the supreme court shall select the attorney general.
The Tennessee General assembly sets forth the duties and responsibilities of the attorney general, and guess what? They can change those duties and responsibilities.
Dinan: And that’s quite right, in the last five years, I would say, especially given the importance of state attorneys general. We just saw the importance of state attorneys general last week in Tennessee, where, due to a federal court case that was led by the Tennessee attorney general and joined by 19 other states, [Biden’s] policy dealing with transgender rights was temporarily blocked.
And that was as a result of state attorneys general taking that case to federal court. So given the importance of that, there has been a lot of attention given in some states.
Let’s alter the rules. Let’s alter the responsibilities. Let’s provide more guidance in terms of when an attorney general can bring suit and when an attorney general cannot bring suit.
So there is precedent for this in other states for the legislature to play a role, given its constitutional responsibility, of adjusting those duties and responsibilities. And that’s certainly something that the Tennessee legislature could look at.
Listen to the interview:
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