Report: Selection process for Tenn. AG is flawed

John O'Brien Feb. 14, 2011, 2:46pm


WASHINGTON (Legal Newsline) - A new report says the Democratic Party's hold on the Tennessee Attorney General's Office is a product of the state's flawed selection method.

The Federalist Society, a conservative law and public policy study group, says the current procedure for selecting the attorney general helps Democrats keep a stronghold on the office. The state Supreme Court appoints the attorney general to eight-year terms.

The last eight attorneys general, including current officeholder Robert Cooper, have been Democrats, even though the state has had three Republican governors and three Democratic governors in that time.

"There is a rich debate about the benefits and risks of insulating justices from political influences, and there are a number of different approaches toward selection," says the report, authored by Nashville, Tenn., attorney J. Ammon Smartt and Vanderbilt University law student Keith Randall.

"Currently, however, a survey of methods of selecting attorneys general indicates they are almost all subject to elections or political accountability through appointment by the political branches."

The report says an attorney general must only please the supreme court justices who appointed he or she to earn a second eight-year term, and that Tennessee attorneys general have comparatively long tenures. Tennessee uses a judicial nominating commission to find three applicants for justices, and the governor appoints one.

"Without a direct mechanism for imposing democratic accountability, Tennessee voters would have to rely on pressure from the elected branches of the state government or private litigation," the report says.

"Neither option has much chance for success, as elected officials would be challenged on the basis that they are threatening the separation of powers, and private litigation would likely be dismissed."

The report adds that Tennessee voters have lately favored Republican candidates, electing eight to the U.S. Senate in the last 20 years as opposed to two Democrats.

Tennessee is one of seven states that do not elect its attorney general. Maine's legislature selects its AG, and the other five --Alaska, Hawaii, New Hampshire, New Jersey and Wyoming -- are picked by governors.

The full report can be found here.

From Legal Newsline: Reach John O'Brien by e-mail at

More News