Tennesseans understandably tend to put their political focus on hot topics such as abortion legislation. But little attention has been given to what I think is one of the most important pieces of legislation going through the General Assembly, a proposed amendment to Tennessee’s constitution governing the office of the Attorney General and Reporter. Few realize the influence of that office or how little influence anyone has on that office.
The Influence of the Office on the State’s Judges
Many do not recognize the influence the attorney general has. Some are aware of high-profile things such as the current attorney general’s unwillingness to defend the state’s sovereignty protected by the 10th Amendment relative to the federal refugee resettlement program. But what they may not appreciate is the influence of the attorney general on the state’s judges.
For example, two years ago, a Knox County judge rightly ruled that the word “husband” in a statute didn’t include a woman’s wife in a same-sex “marriage” between two lesbians. A woman is never a husband and vice versa.
But the attorney general’s office came into court and argued that the word “husband” only meant spouse. This, according to the attorney general, was necessary in order to accommodate the U.S. Supreme Court’s new understanding of marriage in which male and female are irrelevant.
The judge uncritically accepted the attorney general’s argument. To interpret “husband” in a manner that includes a “woman” is judicial legislation pure and simple, and it was done at the behest and urging of the attorney general.
The Influence of the Office on Public Policy
But the attorney general not only has significant influence among judges, he can also influence a change in public policy through his opinions.
Last month, in keeping with the attorney general’s acquiescence to the new norm of confusing biological sex with the psychological construct of gender, the attorney general issued an opinion stating that when the legislature 19 years ago used the word “gender” in a statute instead of the word “sex,” the legislature intended to include today’s modern concept of gender identity. Fat chance of that, given that I was there and remember the discussion and vote on the bill he misconstrued.
But the opinion was requested by Democrats as a means of finding out whether they needed to pursue or forego legislation that would have specifically added “gender identity” to that statute. Why would this opinion signal to them that their legislation was now unnecessary? Because they know attorneys and judges will use the opinion to usher into our law the idea that “gender” and “sex” are not only the same thing, but also the idea that gender includes gender identity.
The Influence of the Office on the Legislature
Lastly, the favorite tactic of those seeking to kill legislation is to get an attorney general’s opinion as to whether the proposed legislation is constitutional. The attorney general’s opinion may be accurate, but too many legislators, most of them being non-lawyers, are too quick to accept his or her opinion as the truth. However, they may not appreciate that someone with a different jurisprudential and constitutional philosophy might issue a different opinion.
Nevertheless, good legislation may not be approved. After all, the thinking goes, why pass a law if the person tasked by law to defend the law says, in advance, he or she won’t defend it?
The Current Lack of Accountability by the Attorney General
Given the influence of the attorney general and his or her office, accountability would seem to be imperative. Yet there is an utter lack of such due, in large part, to the provisions in Tennessee’s constitution.
The state constitution provides that the attorney general is to be appointed by the members of the state Supreme Court. Tennessee is the only state in the union to use this method. In more than 40 states, the attorney general is elected through a statewide contested ballot. Moreover, the justices in Tennessee vote by secret ballot.
Since voting out state Supreme Court justices who vote in a bad attorney general is impossible due to the fact they are subject only to retention elections, neither the attorney general nor anyone else can be held accountable for his or her decisions and actions.
The lack of any accountability is a recipe for troubles mentioned above.
What the Amendment Would Change
The proposed amendment, Senate Joint Resolution 1, would change this process in three ways. Firstly, instead of just appointing someone to the office, the justices would only nominate someone. Secondly, the justices would have to vote for the nominee in public. And thirdly, a majority of the House and a majority of the Senate would have to confirm the nominee.
This is the process the people approved relative to open positions on the Tennessee Supreme Court. I saw it work well when current Justice Page was nominated by former Gov. Haslam. Legislators asked good questions and pressed for answers.
To me, this is a good means of providing accountability, though indirect. Citizens can quiz the candidates for the legislature on what kind of person they would want to hold this office and then hold them accountable if they don’t put that kind of person in the office.
Direct election of an attorney general, on the other hand, has proved to be a stepping stone to a run for higher office, and, consequently, the attorney general’s decisions become even more political. When politics becomes paramount to re-election or to the office next to be sought, the correct legal analysis and decision often give way to what is politically expedient.
It is always good to give attention to legislation that will make a particular change in regard to a particular matter, but we dare not ignore those matters of government structure that may influence or determine the outcome of the legislation on which we are focused. We might say, as with any house, what is allowed to happen in the House (and Senate) will depend on the infrastructure that underlies it.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
Get David Fowler’s Blog as a feed.