Tarwater to bring textualist philosophy to Tennessee Supreme Court | Georgiana Vines

As Knoxville lawyer Dwight E. Tarwater prepares to become the next member of the Tennessee Supreme Court in September, he says the American jurist who most embodies his type of judicial philosophy is the late U.S. Supreme Court Justice Antonin Scalia.

Tarwater considers himself a "textualist." He says that means he believes “words control,” and the actual words in Tennessee laws and the state Constitution – not debates and meetings where the words were shaped – are what he will consider as a member of the state’s highest court.

He discussed his philosophy during confirmation hearings in the Tennessee General Assembly after Gov. Bill Lee appointed him to succeed retiring Justice Sharon Lee, who’s been compared to the late U.S. Supreme Court Justice Ruth Bader Ginsberg as a dissenter to majority rulings. Lee is leaving as the last justice appointed by a Democratic governor.

The investiture of Tarwater as a new justice will be at 3 p.m. Sept. 5 in the Tennessee Theatre, with the oath to be administered by Gov. Lee. His term begins Sept. 1.

Tarwater was asked which American jurist had his judicial philosophy in a state House Civil Justice Committee meeting on Feb. 15. He also talked about it in an interview with this columnist in his office in the Truist Bank building on Gay Street on Aug. 15.

Tarwater told the committee that while he was serving then-Gov. Bill Haslam as his legal counsel, they were waiting for the U.S. Supreme Court’s decision in 2015 on whether the Affordable Care Act was constitutional, since that had implications for the state’s TennCare program. The Supreme Court ruled in favor of the mandate that an individual must maintain a minimum level of health care coverage.

Tarwater said the part he was interested in was a clause that says subsidies are available on an exchange “established by the State.” Chief Justice John Roberts said in the majority opinion that the subsidies are legal and striking down the provision on an exchange “established by the State” would cause the entire system to collapse. Justice Scalia in a dissent said the words spoke for themselves or else they don’t have meaning.

“I’m in the Scalia camp,” Tarwater said.

He said he’s proud that he was unanimously approved by the entire Legislature after House Civil Justice and Senate Judiciary Committee hearings, of which taped videos are archived on the General Assembly’s website. A Republican, Tarwater believes his position with Haslam and the experience of working in Nashville contributed to his becoming “a more total package” for Lee in considering who to appoint.

Tarwater, who’s 68, has never been a candidate for judge. Through his law firm, Paine, Tarwater & Bickers, he has extensive trial and appellate experience. His clients included Jacobs Engineering Group in personal-injury cases brought by workers at the 2008 coal ash spill at the Tennessee Valley Authority's Kingston Steam Plant, which was settled in May, and a number of Fortune 500 companies. The firm also has been active in pro bono work, for which it has been recognized. His application for the job cited helping a homeless person who lived in a doghouse.

Tarwater is the first Knoxville lawyer to be appointed to the Supreme Court since the late Hamilton S. Burnett, who served in 1947-69, including as chief justice for six years. Lee, the retiring justice, lives in Knoxville now but resided in the Madisonville area most of her life.

Other East Tennesseans who have served on the court are the late Riley Anderson, who grew up in Knoxville but was associated with an Oak Ridge law firm when appointed, and Gary Wade, a former Sevierville mayor who became vice president and dean of Lincoln Memorial University’s Duncan School of Law after retiring from the court. He’s now retired from LMU.

The Civil Justice Committee hearing brought out personal information about Tarwater that shows how he has handled difficult situations. His wife, Mary Flowers Tarwater, died in 2012. They had three children, who Tarwater said “did great and kept me from the pit.” There are now five grandchildren and a sixth on the way, he said.

At another time during the hearing, he was asked where “the commonality” was between himself and other Tennesseans. In addition to talking about his legal experience, he said that when his wife suffered a fatal cardiac arrest on Christmas Eve, he gathered his children around him and made the decision to remove life support for her – “the hardest decision I ever made.”

He became philosophical about tragedy and struggles being a part of everyone’s lives and how it shapes them. “I’m not afraid to make a hard decision,” he told the committee.

The incoming justice is the son of the late Ted and Evelyn Tarwater. The family lived in West Hills, and Dwight Tarwater is a graduate of Bearden High School. He received undergraduate and law degrees from the University of Tennessee and served as law clerk to Court of Appeals Judge Houston Goddard before helping establish his law firm in 1987.

Tarwater enjoys talking about his children and their achievements. Davis, a Knoxville businessman, is a graduate of the University of Michigan and University of Oxford and a 2012 Olympic gold medalist in swimming; Katherine Tarwater Freeman, a graduate of the University of Georgia, is a former public school teacher and lives in Athens, Georgia; and Dwight, a graduate of Cornell University and the University of California Berkeley, where he played on the varsity basketball teams, is a Knoxville health care consultant.

Tarwater was accompanied at his confirmation hearing by Melinda “Mimi” Culvahouse Hardy of Richmond, Virginia., who also lost her spouse. “We are dating,” is how he described the relationship. She grew up in Ten Mile, Tennessee, and is the sister of A.B. Culvahouse, a former U.S. ambassador to Australia and well-connected Republican.

A son, Will Hardy, is the head coach of the Utah Jazz professional basketball team.“We both have an interest in sports and both have sons who played basketball,” Tarwater said.

Tarwater will be in a retention election in 2024 to serve the remainder of the eight-year term.

∎ REMEMBERING THE MAYOR’S MOM: Lois Claire Kincannon, mother of Knoxville Mayor Indya Kincannon, died at age 83 in Knoxville on Aug. 9 after a career as an interior designer, AM radio reporter, business owner in Leesburg, Virginia, and founder of the Academy of Music in Purcellville, Virginia. She also was a theater critic and acted in community theater.

Her husband was the late Charles Louis Kincannon, a statistician who served as the director of the U.S. Census Bureau in 2002-08. During his career, he was chief statistician with the Organization for Economic Cooperation and Development in Paris, a time that Mayor Kincannon said on Facebook was “a dream come true” for the family. During that time Claire Kincannon founded Dancing Ink Press and used it to publish several books, including "Paeonian to Paris," Sheets for Men Only: International Anthology of Poetry & Prose," "Sheets to the Wind" and "Rockin’ with Porch Memories." Louis Kincannon died in December 2012.

In the Facebook post, Mayor Kincannon said her mother was in the memory care unit at Northshore Heights Senior Living the past nine months and being assisted by University of Tennessee Medical Center Hospice.

Mayor Kincannon said Thursday in a phone interview interview that her mother was a role model, and when she and her late sister, Alexandra, spent time with her, they ”were there to learn.” The world they traveled “had an impact on me and my sister,” she said.

She said her father also was a role model. “Dad’s work always was in public service,” she said.In December 2015, Claire Kincannon created a Graduate Internship Endowment for the Libraries at George Mason University that will provide learning opportunities for graduate students with interests, career goals and skills related to archives — particularly in the area of the performing arts.

The mayor’s mother was moved to Knoxville at Thanksgiving 2020 in the middle of the COVID-19 pandemic before there were vaccines. It was a busy time, Mayor Kincannon said.

It’s also a busy time for the mayor now as she campaigns for a second term with three opponents in the primary election on Aug. 29. She said she will make a decision later about a celebration of life for her mother, but does plan for her mother to be interred with her father at Congressional Cemetery in Washington, D.C.

∎ KNOXVILLE CITY ELECTIONS DEADLINES: The deadline to request an absentee ballot for the Aug. 29 city primary is Aug. 22. Anyone wishing to vote absentee can call the Election Commission at 865-215-2480 or download an absentee request at www.knoxvotes.org.

Final day of early voting is Aug. 24.

All candidates on the ballot have a pre-primary campaign financial disclosure due Aug. 22. It will cover the July 1-Aug. 19 period. These reports will be posted upon receipt by the Election Commission at https://knoxcounty.org/election/candidate_info/index.php.

Georgiana Vines is retired News Sentinel associate editor. She may be reached at gvpolitics@hotmail.com.

This article originally appeared on Knoxville News Sentinel: Georgiana Vines: Tarwater to bring textualism to state Supreme Court