Tennessee judicial candidates lose discrimination appeal against Governor

John O'Brien Feb. 21, 2007, 3:03pm


NASHVILLE, Tenn. - Tennessee's Supreme Court decided Wednesday that Gov. Phil Bredesen did not discriminate against two white applicants vying for the open spot on the five-seat Court.

Chief Justice William Barker delivered the opinion, in which current justices Janice Holder and Cornelia Clark and retired justice Riley Anderson joined.

George Lewis and Houston Gordon argued Feb. 1 that Bredesen's refusal to allow Lewis and Gordon to be considered on a second three-person panel of candidates after the first one was refused because the lone black candidate dropped out violated the Tennessee Human Rights Act.

"Our conclusion that Lewis's equal protection challenge presents a non-justiciable political question does not imply that the Governor's rejection of the two remaining nominees on the first list (Lewis and Gordon) violated equal protection principles," Barker wrote. "Indeed, we believe that the Governor's actions neither implicated nor ran afoul of equal protection principles."

When the third candidate - Davidson County Chancellor Richard Dinkins -- withdrew his name, Bredesen asked for a new list of candidates because he wanted one with a minority on it. Dinkins was the lone black person on the first panel.

The second panel that was submitted again featured Gordon and Lewis and added D'Army Bailey, who is black. However, Bredesen refused the list, claiming candidates who were already rejected could not be resubmitted.

Davidson County Chancellor Ellen Hobbs Lyle agreed with Bredesen, and the Judicial Selection Committee planned a Jan. 24 meeting to pick the new third candidate, who would join Bailey and Judge William Koch (of the state's Court of Appeals).

That left out Gordon and Lewis, who decided to ask that the appointment be stayed until their discrimination claim could be worked out.

Gordon is an attorney practicing in Covington, and Lewis, nicknamed "Buck," is the vice president of the Tennessee Bar Association.

"Notwithstanding, Lewis's claim that he was denied equal protection by virtue of his race hinges solely on the fact that the Governor's letter stated that 'diversity is a significant factor that I believe should be considered.' In our view, this glimpse into but one of the Governor's considerations must be read in the context of the entire letter, which unequivocally stressed that the Governor's goal was to 'appoint judges who meet the highest professional and personal standards,'" Barker wrote.

"Upon Dinkins' withdrawal, the Governor no longer had a full panel of the 'best qualified' applicants from which to exercise his discretion by examining any number of considerations, of which diversity was just one. As a result, the Governor exercised his statutory option to reject the first panel for another panel containing three applicants from which to make the appointment. We will not speculate or otherwise interpret the letter as meaning the Governor would not appoint a white applicant or would only appoint a minority applicant; instead, the Governor, after determining that the first panel was no longer a complete panel with which to evaluate the 'best qualified' applicants, took a course of action available to him by statute under the Tennessee plan."

Tennessee's Judicial Selection Committee must now re-submit a second panel of candidates. Koch and Bailey, previously on the revised second panel, may be resubmitted, though Gordon and Lewis may not.

The opinion authorized the Commission to conceive a process for selecting the next panel. The 17-member Commission will meet Feb. 28.

"We will meet to further review the court's opinion, ensure strict compliance with it and determine how to proceed," Chairman Dale Tuttle said.

"The commission will act expeditiously and in accordance with the opinion."

Justice Gary Wade recused himself from hearing the case because, "My own nomination and eventual appointment as an associate justice is a part of the history of this litigation."

Wade filled one of the two spots last year that were created when justices Anderson and Adolpho Birch retired. Anderson took Wade's spot during the hearing.

Tennessee's Supreme Court has the unique power of appointing the state's attorney general rather than having voters decide. In November, the Court chose Robert Cooper for an eight-year term to replace Paul Summers. Cooper represented Bredesen in the case.

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