NASHVILLE - Tennessee's next state attorney general is coming under criticism from Democratic legislators unhappy over his comments that he would consider creating a new special unit to press lawsuits against the federal government.
Jonathan Skrmetti, a Republican and current chief legal counsel to Gov. Bill Lee, said that's because the agency's "nonpartisan" attorneys or other lawyers who are "deeply committed on the other side of the ideological spectrum" don't want to be involved in those type cases and shouldn't be required to do so.
Tennessee Senate Minority Leader Jeff Yarbro, a Nashville Democrat and attorney, wasn't happy about the comment.
"The barrage of partisan, multistate litigation by attorneys general is a new phenomenon," Yarbro said in a statement to the Chattanooga Times Free Press.
From 1980 through 2014, when Herbert Slatery took over as attorney general, Tennessee joined other states to sue the federal government exactly twice, he said.
"But Tennessee has sued or helped other states sue the Biden Administration 17 times in the last 18 months," Yarbro said.
The remarks by Skrmetti, 45, a former Tennessee chief deputy attorney general, came last week as the five-member Tennessee Supreme Court interviewed him and five other hopefuls. Following the public session, justices later met behind closed doors for more interviews and chose Skrmetti. The four Republican justices were listed as voting yes in a news release. No mention was made of the lone Democratic justice, Sharon Lee.
Under the state's unique process of selecting the attorney general, the court is tasked with filling state government's top legal post. Skrmetti's former boss, Herbert Slatery III, is not seeking another eight-year appointment and leaves office Aug. 31.
Skrmetti served as Slatery's chief deputy attorney from 2018 until December, when he joined Lee's administration. A Harvard Law School graduate, he first worked for the U.S. Justice Department, prosecuting federal civil rights crimes around the country but mostly in Middle and West Tennessee. He later worked as an assistant U.S. attorney prosecuting federal crimes in West Tennessee, focusing on human trafficking, official misconduct and hate crimes.
He was asked by Justice Sarah Campbell - a Republican appointed in February to the Supreme Court and a former associate solicitor general and special assistant to Slatery - that based on his knowledge of the office and interests, what priorities did he see if he were to become attorney general.
"To the extent that there's affirmative litigation against the federal government, it makes sense to compartmentalize that and not have people pulled out of the divisions to work on those issues," Skrmetti said. "Because I recognize we're looking at a lot of civil servants. It's hard to recruit and retain people for the AG's office. People go there specifically because they're able to be good public servants. And it's not a political job.
"I don't think that it's a partisan move to attempt to enforce the state's interests in affirmative litigation against the federal government. I think it's a part of the dynamic tension of separation of powers that keeps our system going and keeps everybody free," Skrmetti said. "I recognize a lot of people don't want to be involved in those cases, particularly if they're deeply committed on the other side of the ideological spectrum. So I do think there's room to create a separate unit to look at that affirmative litigation."
The incoming attorney general is also a longtime member of The Federalist Society for Law and Public Policy Studies, a national conservative and libertarian group that states on its website it is committed to reordering priorities within the legal system to place a "premium on individual liberty, traditional values and the rule of law."
"The explosion of anti-federal litigation by the AG has been in lockstep with other Republican politicians and is intended to obstruct the Biden administration nationally and to advance nationwide ideological goals rather than to protect Tennessee or Tennesseans," Yarbro said. "Mr. Skrmetti would be far more successful if he restored the nonpartisan orientation of the Office of the Attorney General rather than doubling down on the aberration of the last eight years."
Yarbro argued Skrmetti's statements about opening a special unit separate from the civil servants doing the traditional work of the state is an "acknowledgment that these Republican coalition lawsuits are 100% partisan politics and disconnected from the constitutional and statutory obligations of the attorney general.
"The Tennessee attorney general position is nonpartisan by design and selected by the Supreme Court to represent the best interest of all Tennesseans, even the 1.1 million of us who voted for Biden," Yarbro said.
Lt. Gov. Randy McNally of Oak Ridge, the Republican Senate speaker, said in a statement to the Times Free Press that "the Attorney General's Office has always been involved in affirmative litigation against the federal government.
"Mr. Skrmetti merely suggested a way he might handle those cases in a way that would marshal the office's resources most effectively," McNally said. "At no point did Skrmetti propose anything that was inappropriate, unusual or unprecedented for the attorney general's office. His suggestion was a logistical tweak, not a change in mission focus."
Tension between the federal government and the states is "inherent in our federal system," McNally added.
"Sometimes that tension is resolved in the courts," he said. "Fighting back against the federal government's increasing overreach is an important and essential function of the office and one I am confident Mr. Skrmetti will carry out appropriately and effectively."
House Majority Leader William Lamberth, R-Portland, also sided with Skrmetti.
"I fully support General Skrmetti in this. And the modern-day Democratic Party may no longer care about individual freedoms or states' rights, but the modern-day Republican Party absolutely does," Lamberth said in a phone interview. "And if this federal government or any government is going to try to trample on the rights of everyday Tennesseans, then we will stand in the breach and fight them. Every single day."
House Republican Caucus Chairman Jeremy Faison of Cosby said by phone he finds it intriguing when either Democrats or Republicans are passionate about something, they don't mind suing the federal government. He said Democrats will defy the federal government on issues such as immigration or drugs.
"I think what we need to acknowledge is both sides of the aisle do it on things that we're passionate about," he said. "So I'm totally disgusted when I see anyone on either side act like they're some kind of religious holier-than-thou or do a better job at what they don't like with the federal government. That's silly on them for playing partisan politics. Secondly, I'm always in favor of telling the federal government to butt out if it doesn't have something to do constitutionally."
Rep. John Ray Clemmons, also a Nashville Democrat and attorney, said in a phone interview, "There are going to to be times where the state and the federal government are going to disagree, and that needs to be resolved via legal means.
"But," Clemmons added, "that is not a tool that is to be used to undermine our democracy like the previous attorney general did when he joined the frivolous Texas lawsuit questioning the validity of the presidential election."
That was a reference to Slatery having committed Tennessee to a lawsuit brought by Texas' Republican elected attorney general that sought to throw out the election results from Georgia, Michigan, Pennsylvania and Wisconsin, which Democrat Joe Biden won.
The U.S. Supreme Court refused to wade in, stating Texas lacked standing to pursue the case, saying it "has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections."
Skrmetti earned undergraduate degrees from both the University of Oxford in England and George Washington University. He is a member of the Tennessee Bar Association and the Memphis Bar Foundation. He was a part of Leadership Tennessee Signature Program Class VIII.
Other candidates who sought the post were former U.S. Attorneys Don Cochran and Mike Dunavant, former state Rep. Jerome Cochran, Republican attorney Culver Schmid and Bureau of Ethics and Campaign Finance Executive Director Bill Young.
Contact Andy Sher at firstname.lastname@example.org. Follow him on Twitter @AndySher1.