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 John Harris, founder of the Tennessee Firearms Association, in-studio to comment on the possibility of a violation of the national constitutional principles of separation of powers in regards to the selection of Tennessee’s state attorneys general.
Leahy: In-studio, the original all-star panelist Crom Carmichael and our good friend who heads the Tennessee Firearms Association. An attorney, Vanderbilt Law School graduate John Harris.
Gentlemen, I think we have a constitutional flaw in the state constitution of Tennessee because it’s a violation of the national constitutional principles of separation of powers and checks and balances. What do I mean by that?
The process by which we select the attorney general here in the state. According to the constitution, we’re the only state that does this. The members of the judiciary, the five Supreme Court justices pick the attorney general.
The Tennessee General Assembly, which plays a vital role in everything that’s being done by the attorney general, has no say in that matter according to the constitution.
Yet, by practice, the governor’s pick – and remember, the governor appoints the Supreme Court justices – has been rubber-stamped with very little questioning about the judicial, the legislative, and the prosecutorial philosophy of the attorney general.
I think that’s a fatal flaw in our constitution. I think there is a possibility of fixing it. But John Harris, I want to talk to you a little bit about this.
The attorney general, in my view, should aggressively defend the Tenth Amendment rights of the state of Tennessee against usurpations of the federal government and the rights of individual citizens. Do you agree with that assessment of what the attorney general should do?
Harris: Oh, absolutely. That’s what you see other states do on a regular basis.
Leahy: The other states are out there. But our current attorney general, Herb Slatery, has been very weak, I think, in defending the Tenth Amendment rights of the State of Tennessee. It’s a long list.
I don’t want to go through all of them now, but it’s a very long list. I would say he’s weak. He said that he’s not going to go for another eight-year term.
The constitution says it’s an eight-year term. All the buzz is that Governor Lee wants to have the Supreme Court rubber stamp. And I use that term advisedly because that’s what they did last time when they picked Slatery.
They rubber-stamped this kind of left-wing former Judge Brandon Gibson who is now the chief operating officer of the state. But everybody says if you look at her opinions as an appellate judge, would you categorize her as left-wing?
Harris: I think I would. Left-leaning moderate at best, yeah.
Leahy: And she’s not going to be somebody who would aggressively defend the Tenth Amendment rights of the state of Tennessee or resist the usurpations of the federal government. I think we’re on a glide path right now.
I think that the Supreme Court has done a very good job in a lot of its recent decisions. My view on that. Justice Bivins is up for retention. An election on August 4th.
I know Justice Bivins and I have personally said here that I intend to vote “yes” to retain him because I think his judicial record is very strong. However, and James Madison would absolutely agree with me on this, the institution should be constrained.
The Supreme Court should not be able to pick the attorney general without the Tennessee General Assembly having a say in that. That’s my view. Your thoughts, John?
Harris: Well, if you look at the state constitution, the role of the attorney general, and the reason the court appoints it, that seat, that position, is because they are constitutionally, essentially the court’s clerk. Their job is to be the official reporter.
Leahy: In the constitution, it says, the Supreme Court shall appoint the attorney general and reporter.
Harris: And reporter.
Leahy: I think it’s the only state in the union where it’s “the attorney general and reporter.”
Harris: That’s correct. And our problem in Tennessee is our legislature, the policymakers have not really understood the constitutional role of the attorney general.
And so by statute, for two centuries now, they’ve been vesting the attorney general’s position with additional statutory authority.
Leahy: Let me just stop here for a moment. This is very interesting, because the selection of the attorney general and reporter, according to the Tennessee Constitution, is the one that we are currently bound by since 1870, but it was around since 1835 in the second constitution as well, the selection of that attorney general reporter is solely the responsibility of the Supreme Court.
Harris: Absolutely. Thank you.
Leahy: And it’s an eight-year term. However, the duties and responsibilities are not in the constitution. They’re determined by statute by the Tennessee General Assembly.
Harris: That’s correct.
Leahy: Wow. So tell us, what does that suggest to us?
Harris: There’s been talk, particularly in the conservative right, of having an elected attorney general like other states do. And if we went that route, then we would have to amend the state constitution.
Leahy: And there have been some ideas, tries. I don’t think that such an amendment to the constitution would pass, just because the process is so long, and right now it wouldn’t affect anything for the next eight years.
Right now, we have a Supreme Court that has not given us the process by which they’re going to select the next attorney general. That’s an error, I think, on their part.
They should make it transparent, and robust, and these candidates should be subjected to very lengthy hearings about their philosophy.
Harris: They should. And that could happen as early as January or February of 2023. And the reason is that because these are statutorily assigned duties, issuing attorney general’s opinions, defending the state and Tenth Amendment matters, handling the criminal appeals, all of that statutorily delegated by the General Assembly to the attorney general, they could easily create another position, call it what you want, maybe solicitor general, and they could define how that position is filled.
It could be through advice and consent. It could be through a popular election. But they could do it within a year. It could be law by next spring, and then they could simply transfer some or all of the duties.
Leahy: And the personnel that are currently in the attorney general’s office …
Harris: They could be transferred.
Leahy: The criticism of Attorney General Slatery and his predecessors is weak in defense of the Tenth Amendment rights of the state of Tennessee. And the people of Tennessee, going to see very weak.
Harris: No public accountability.
Leahy: And no public accountability.
Harris: And all of that could be easily fixed by a General Assembly that was paying attention.
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.
