Attorney General Selection Process Works, Should Be Retained - Articles

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Posted by: Cynthia Wyrick on Feb 1, 2014

Journal Issue Date: Feb 2014

Journal Name: February 2014 - Vol. 50, No. 2

We are now in the heart of the legislative session, and once again efforts to change the way that we select our attorney general are underway. Every time the issue is raised, those raising it cite as their primary support the fact that no other state selects their attorney general in the same manner as Tennessee. Boiled down to its essence, the argument is that if everybody else is doing it differently, Tennessee’s selection method must be flawed.

For those of you who know me, you know that I will find some “saying” that applies to any issue of importance to me. Chalk it up to me being a southern “country girl.” The saying that comes to mind here is one that Mom always said to me when I insisted that I be permitted to do something because “everyone else was doing it.” She would ask: “If all of your friends jumped off a cliff, would you follow?” I do not want to see our state fall victim to this mentality as it relates to selection of our attorney general. 

Under the Tennessee Constitution, the attorney general and reporter is selected for an eight-year term by the Tennessee Supreme Court. As the lawyer for the state, the attorney general represents the executive, legislative and judicial branches in the state and federal courts. The office approves contracts and rules, assessing both form and legality, and advises the three branches on federal and state constitutional issues, and state law. In addition, the attorney general’s office is responsible for representing the state on appeal in all civil and criminal matters.

While our method of selecting an attorney general is unique, I submit to you that it is also the best available. This method of selection has led to the selection of some of Tennessee’s finest lawyers to represent the state. They have performed so admirably, in no small part, because they are permitted to give unvarnished legal advice and issue opinions without regard to how that advice or the opinions given will affect their chances of reelection or reappointment, as they do not stand for election nor are they appointed by one of the political branches of our government.

While people who want Tennessee’s selection method changed try to make it seem unusual or inappropriate for the Supreme Court to appoint the state’s lawyer because the attorney general will then appear in their court, as we know, all courts must frequently appoint counsel to represent parties in matters that are before them. For instance, courts are routinely called upon to appoint counsel to represent indigent defendants in criminal matters, to serve as guardians ad litem, and to represent parents in dependency and neglect matters. It is also worthy of note that the uniform testimony of former Tennessee attorneys general has been that once they were selected by the Court, there was no interference from, nor influence exercised by, the court in the management of or opinions issued by the office. 

Frankly, the other methods that have been proposed would simply interject politics unnecessarily into the office of the attorney general, as they have in so many other states. One proposal before the General Assembly is that the attorney general should be popularly elected every four years, as occurs in 43 of our sister states. Former Attorney General and now Senior Judge Paul Summers says that because this method of selection creates a need for constant campaigning, the National Association of Attorneys General (NAAG) is referred to facetiously as the “National Association of Aspiring Governors.”

When this method is used, lawyers who run for attorney general are required to raise a large amount of money to fund their campaigns. Most of this cash comes from the people who will be involved in cases where the attorney general will be on the other side, placing them in the position of influencing who they will face as an adversary in court by making campaign contributions to the candidates for this position. Then, once elected these now political figures must constantly campaign. As such, they will face consistent pressure to shade their opinions or actions in a manner designed to appeal to popular will rather than demonstrating strict fealty to the constitution and the law.

There are also proposals that would have the legislature and/or the governor appoint the attorney general, which is how attorneys general are selected in seven states. When making their appointment, politics must necessarily be a consideration in a way that it is not when the Supreme Court makes the appointment.  Injecting politics into the process will only harm the cause of justice.

Of course, you are now asking what you can do to help ensure that we retain this outstanding selection method. Please call your legislators today, and let them know that you want our Supreme Court to continue to select the attorney general because this method has worked so well for our state. Remember, “Together We Make a Difference!”

Cindy Wyrick TBA President CINDY WYRICK practices law with Ogle, Gass & Richardson PC in Sevierville.