Tennessee has had for some time a clear, distinctive and generally distinguished tradition of a nonpartisan judiciary and an appointed, professional attorney general. That suits most voters and lawyers. If the new Legislature’s radical Republicans get their way, however, they will inject partisan politics into both spheres.
The threat comes from Republicans who are dizzy with their new and overwhelming control of both the House and state Senate and want to scratch an old itch to remodel the judiciary.
Some want to drop the retention-vote system for appellate court judges and make them stand for open statewide elections — a method which would foster big-money campaigns and effectively politicize courts of appeals and the Supreme Court. Others want to take away the state Supreme Court’s power to appoint a state attorney general and make that office subject to a statewide partisan vote. Both, for many reasons, are bad ideas.
Most Tennesseans recognize the value of fair judges who seek to rule on the merits of a case rather than fudging or slanting a ruling to curry political favor. And many are happy to have an attorney general who takes the office to protect the broad, common interests of Tennessee. But the Republican extremists who favor fundamentally changing these offices wish to do so not for altruistic reasons, but for political reasons.
State Sen. Mike Bell, R-Riceville, for example, makes it blatantly clear that he wants an elected attorney general who will join the nation’s other Republican state attorneys general in pushing lawsuits in two of the most high-profile, anti-federal lawsuits in memory. One seeks to reverse the Obama administration’s Affordable Health Care Act. The other supports Arizona’s errant and highly controversial immigration law, which requires police officers to ask people who look like they could be or might be illegal immigrants to produce proof of legal residency.
In Tennessee, the governor appoints judges to the Supreme Court and appeals courts, and they subsequently stand for election on yes-no retention votes. Unlike all other states, moreover, Tennessee’s amended constitution long ago authorized the state Supreme Court to appoints the state attorney to an eight-year term, the same term given judges.
The current attorney general, Robert E. Cooper Jr., who was appointed Nov. 1, 2006, has expanded the purview of the office to more aggressively pursue commercial fraud and consumer protection. But he has correctly followed the state’s long-standing tradition of avoiding intrusion and the use of the state’s resources in other states’ legal battles, like Arizona’s highly politicized immigration bill.
He also declined legislators’ push to join the equally politicized battle to block the administration’s health care reform bill, which he considered to be an unconstitutional attempt to pre-empt federal law.
Given the highly charged political foment surrounding both laws, his views seem well-founded. If opposition to his legal views on those particular matters is the best reason legislators can cite to justify their push to amend the Constitution to create an elected attorney general, they are making their case on an extremely weak reed. In essence, they chiefly want to change sound rules and core values for the state attorney general’s office because the current attorney general won’t bend to push their partisan political views.
Bell has admitted as much. Though he phrases it differently, he and other Republicans chiefly want elected appeals judges and an elected attorney general who will push the Republican’s political agenda through their rulings on their “values” issues for gun rights and against abortion, health care and regulation of industry and environmental rules. The long-term effects of pouring money into judicial offices would guide the state down that path. The question is, what rational citizen would want such an unbalanced and partisan legal system.