Gordon suggests solution in Supreme Court selection stalemate

Passed-over nominee files motion to intervene in Chancery case; also steps down from Tennessee Lottery Board

Email | Print By Ken Whitehouse

Houston Gordon

Covington lawyer J. Houston Gordon has filed a "motion to intervene" in Davidson County Chancery Court in the ongoing saga over who will replace Justice A. A. Birch on the Tennessee Supreme Court.

As some of you may remember, Gov. Phil Bredesen and the Tennessee Judicial Selection Commission have been at a stalemate over the Supreme Court selection process since mid-July. Birch announced he was stepping down in January and relinquished his seat as of the end of August.

Gordon, who was the Democratic nominee for U.S. Senate in the 1996 race against eventual winner Fred Thompson, filed the motion and related documents late today (copy available at this link).

"Mr. Gordon's main consideration is the integrity and preservation of the Tennessee Plan," said Nashville lawyer Charles Robert Bone, in an interview. He is among several attorneys representing Gordon along with his father, Charles W. Bone, and Gordon's law partner, former Supreme Court Justice Lyle Reid. "The position we have taken in the motion to intervene allows for a resolution between the Governor and the Judical Selection Commission on a procedural basis."

The "Tennessee Plan" is a reference to how Tennessee Supreme Court vacancies are filled. Justices are nominated by a commission, appointed by the governor, and then face a retention question on a statewide ballot. While some legislators have called for Supreme Court Justices to be popularly elected, the consenus among most elected officials has been to keep the system the way it is.

In the filing, it does seem that Gordon is making a peace offering of sorts that could quell the controversy. The motion says that when an early nominee of the selection commission, Davidson County Chancellor Richard Dinkins, withdrew, it "made the panel procedurally defective and incomplete." Thus, the governor was "deprived of a valid three-person panel from which to appoint."

In effect, you could say that Gordon is calling for a "do-over."

If Chancellor Ellen Hobbs Lyle subscribes to Gordon's argument, that would mean the selection commission would have to resubmit the names of Gordon and Memphis attorney George T. "Buck" Lewis III, and then provide one additional name. Legally, this would then be considered the "first panel" submitted to Bredesen.

In related news, over the Thanksgiving holiday Gordon resigned his seat on the board of the Tennessee Education Lottery. Gordon was appointed to the board by Bredesen.