So here we are facing yet another judicial-deadlock situation over a Supreme Court justice -- this time not at the federal level, however, where Democrats and Republicans customarily filibuster and Bork each other, with one side threatening most recently to invoke a cloture-killer called "the nuclear option."
No, this time the standoff is in Tennessee, and it's not even particularly partisan. A frustrated Governor Phil Bredesen, who has statutory authority to fill the one remaining vacancy on the five-member state Supreme Court, currently finds himself in a corner because of the so-called Tennessee Plan, under which the governor must choose his appointment from a slate of three candidates selected from among a multitude of applicants by an independent 17-member body called the Tennessee Judicial Selection Commission.
Square the degree of difficulty by the way this often cumbersome body is appointed: Tennessee law now requires that the commission's members be chosen by the legislative leaders of both parties from lists submitted by a variety of established organizations in the state's legal community. No one should be surprised that this intended compromise between conditions of legal purity and dictates of political patronage results in a deliberate body that is half-ostrich, half-jackass. Or so we imagine Bredesen to be thinking as he views the commission's decisions.
It is an open secret that Bredesen, a Democrat, wanted to be able to choose a qualified African-American candidate from West Tennessee. It is even known that he had in mind someone like John Fowlkes, chief of staff for Shelby County mayor A C Wharton. Unfortunately, Fowlkes didn't make the first list of three candidates recommended by the commission -- probably because the quietly capable Fowlkes wasn't well enough known among the commission's 17 members, who hail from all over Tennessee.
Nor did Fowlkes make it through a second round of recommendations after Bredesen rejected all three candidates originally presented by the commission. The law requires that Bredesen either challenge the Tennessee Plan through litigation or fulfill its dictates by naming one of the three candidates the commission has newly presented him. The governor has made no secret of his dissatisfaction with the new list, one of whose members, Covington lawyer Houston Gordon, was on the first group of three that Bredesen turned down.
Another member of the new list, Circuit Court judge D'Army Bailey, is black but is reportedly considered too quirky by the governor's men. And the third candidate, Nashville-area Court of Appeals judge Bill Koch, is from the wrong race and the wrong region and apparently lacks the requisite political credentials as well.
Gordon, a reliable Democrat, may end up getting the appointment by default. But whether it's him or one of the two others, Bredesen will have been forced into naming someone against his will. We wonder: Isn't there a better way to do this? Maybe by reverting to single-handed gubernatorial appointment -- since politics can't be separated from the process, in any case -- or maybe, since state government is in theory democratic (small "d"), by direct popular election?