Attorney general search: Supreme Court focuses on unconstitutionality in marathon interviews

·5 min read
The Tennessee Supreme Court was completed in 1937 and is now on the National Register of Historic Places.
The Tennessee Supreme Court was completed in 1937 and is now on the National Register of Historic Places.

Tennessee Supreme Court justices want to make sure the state's next attorney general is comfortable telling the legislature no.

In a marathon of interviews Monday, the five justices questioned six applicants to the position, which is expected to be filled before Sept. 1. 

Tennessee is the only state where the state Supreme Court appoints the attorney general and reporter as part of the judicial, not executive, branch of state government. The attorney general serves for an eight-year term.

The candidates are all career attorneys, most have worked in state government in one form over the years and two are former U.S. attorneys.

Gathered Monday in the Supreme Court room, the candidates settled into camaraderie, exchanging handshakes and asking after each other's families, wishing each other well and commiserating over tough questions in breaks in the hearing.

Tennessee attorney general search: Former judge, lawmaker and federal prosecutors seek post

Previous coverage: Attorney general search: Tennessee Supreme Court opens applications as Slatery steps down

"The application was, and is, formidable on purpose," Chief Justice Roger A. Page said Monday afternoon. "You’re all good candidates. I assure you we take our responsibility very seriously, and you've made our job very difficult."

The candidates

The applicants, in alphabetical order:

  • Donald Q. Cochran, Jr., 64, former U.S. Attorney for the Middle District of Tennessee;

  • Jerome Cochran, 50, former state representative for the 4th legislative district;

  • David Michael Dunavant, 51, former U.S. Attorney for the Western District of Tennessee;

  • R. Culver Schmid, 63, former assistant district attorney general for Knox County;

  • Jonathan Thomas Skrmetti, 45, current general counsel to the governor and former chief deputy attorney general of Tennessee; and

  • William Edwin "Bill" Young, 65, current executive director of the Tennessee Bureau of Ethics and Campaign Finance, former solicitor general of the Tennessee Attorney General's Office and a former Davidson County chancellor.

Each completed a lengthy application for the role, which can be found on the supreme court's website at www.tncourts.gov.

Their full interviews, each lasting approximately one hour, can be viewed via the court's page.

In general, the justices focused more on ideological questions about the role of the attorney general , but they referenced each man's background and application for more tailored questions about experience and aptitude.

Constitutional conflict

In the role, the attorney general acts as the lawyer for all three branches of state government under the authority of the state constitution — a role not immune to conflict the justices made clear on Monday.

"One of the obligations of the attorney general is to be the sworn lawyer for all three branches of government, including the judicial, but your ultimate oath is to the constitution," Justice Holly Kirby asked the first candidate before the panel. "I’d like you to speak to your framework for looking at whether an action by the legislative branch, the executive branch — surely not the judicial branch, but it could happen — is so contrary to the constitution that you would not be able to defend it."

Overall, the candidates said their goal would be to build relationships before any conflict arose, to ease conversation if such a problem arose, but most tiptoed around how they would respond if that wasn't possible.

Young repeatedly said any such conversation should be "behind closed doors" in "quiet conversation."

Donald Cochran would rest the decision on whether the supporting argument could be made in good faith. If not, he would not be "looking to create any dissension or hard feelings, but you have to call the balls and strikes as you see them."

"The attorney general must speak on behalf of the stated will of the people," Dunavant said. "Tennessee and Tennesseans are pretty good at expressing their will vocally through their elected officials."

Skirmetti also indicated he'd try to get out of ahead of any issues.

"We have a non-elected attorney general and ... relatively few attorneys to General Assembly," he said. "There's a lot of room for just talking to people and giving them a better understanding of what happens in the" attorney general's office.

"At the end of the day, the legislature is passing a lot of laws that are immediately litigated. That seems to be the trend nationally no matter which side you're on. If we want our laws to remain in effect, we need to have good lawyers in a position to defend them."

Previously: Tennessee Attorney General Herbert Slatery won't seek new eight-year term

In other news: Everything Tennessee's attorney general said about the Supreme Court's decision on abortion

How should AG initiate lawsuits

Neither Jerome Cochran nor Schmid were specifically asked about constitutional challenges, but they were questioned about the times the attorney general should initiate so-called affirmative litigation on behalf of the state.

"What is in the best interests of the people the state of Tennessee? That's where you start from," Schmid.

Jerome Cochran, a former lawmaker representing East Tennessee, said his experience inside the legislature would give him an edge on working with that branch.

"I understand the legislative process, so I think I can give them some advice if needed," he said.

The justices also peppered the candidates with questions about their ability to hire and fire effectively, how many opinions the office should release and the role of the attorney general in criminal justice reform.

The role is often called "apolitical" because no one runs a campaign to win the seat, but each candidate was clear on their strong ties to the Republican Party. Conservative appointees hold a 3-2 majority on the Tennessee Supreme Court.

Herbert Slatery
Herbert Slatery

Current Attorney General Herbert Slatery III was sworn into the role in October 2014 under then-Republican Gov. Bill Haslam. The office under his leadership has taken increasingly conservative stances in legal arguments alongside the Republican supermajority in the General Assembly.

Notably, he was the first Republican attorney general since Reconstruction.

The attorney general's office includes more than 300 staff and attorneys across the state, responsible for representing the state in criminal appeals and civil actions in both state and federal court.

The attorney general can investigate and prosecute civil actions for environmental enforcement, antitrust violations, Medicaid fraud and consumer fraud.

The justices are expected to announce their pick soon, but did not announce a specific timeline.

Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms

This article originally appeared on Nashville Tennessean: Tennessee Supreme court interviews six for attorney general appointment