Tenn. Supreme Court seat up for grabs again

John O'Brien Feb. 28, 2007, 1:55pm

NASHVILLE, Tenn. - Tennessee's Judicial Selection Commission announced Wednesday that it will be accepting applications from middle and west Tennessee for the state's vacant Supreme Court seat.

The commission will receive applications until March 16, then meet on April 13 to conduct a public hearing and private interviews. A three-person panel of applicants will be sent to Gov. Phil Bredesen, who will pick the state's next justice.

"The commission unanimously decided in a meeting today to reopen the application process in compliance with the Tennessee Supreme Court decision in Bredesen v. Judicial Selection Commission," Committee chairman Dale Tuttle said. "We basically had two options -- use the applications we already received to present the governor with three names or reopen the process. We decided to accept new applications, but also to include those who already applied for this position, except the two who are barred from consideration by the Supreme Court decision."

The Supreme Court recently decided that Bredesen had not discriminated against two white applicants by refusing to consider them for the opening.

George Lewis and Houston Gordon argued that Bredesen's refusal to allow them 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.

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 (Lewis and Gordon) 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' 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,'" Chief Justice William 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."

The Court also decided that Gordon and Lewis may not apply for the job again.

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.

Those who previously applied are: Bailey of Memphis; Court of Appeals Judge Frank G. Clement, Jr., of Nashville; David O. Day of Baxter; Criminal Court Judge Steve R. Dozier of Nashville; John T. Fowlkes of Memphis; Sean Antone Hunt of Germantown; Koch of Nashville; Andrei Ellen Lee of Nashville; Circuit Court Judge C. Creed McGinley of Savannah; Court of Criminal Appeals Judge J.C. McLin of Memphis; Russell Taylor Perkins of Whites Creek; Nathan B. Pride of Jackson; Stephanie R. Reevers of Antioch; Lillie Ann Sells of Cookeville; and Steven R. Walker of Memphis.

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