Tennessee’s last Republican attorney general was also the state’s last popularly-elected attorney general, reports Andy Sher in a story that includes a good bit of Tennessee history. An excerpt:
Newly appointed state Attorney General Herbert Slatery, who last week became only the second Republican in Tennessee history to hold the post, fully embraces the unusual process in which the state Supreme Court names the state’s top lawyer.
But what Slatery, and most other people, may not know is that Tennessee’s one and only previous Republican attorney general, Thomas M. Coldwell, who served from 1865 to 1870, also happened to be the last one popularly elected to the job.
Further from Andy Sher’s story
“It’s an interesting story,” said former Tennessee Attorney General W.J. Michael Cody, who said he researched the history of Tennessee’s unique approach with former Deputy Attorney General Andy Bennett, now a Court of Appeals judge. Most other states, including Georgia and Alabama, elect their attorneys general.
Indeed it is an interesting story, of suspected intrigues in the post-Civil War Reconstruction era. It ranks with the tale of Republican Slatery’s own appointment over sitting Democratic Attorney General Bob Cooper by a Supreme Court dominated by Democrats.
…The 19th-century story involves a former U.S. senator-turned Confederate from Tennessee, A.O.P. Nicholson, and his fellow Tennessean and Confederate Congress member Joseph Heiskell.
Both attorneys, the pair evidently became fast friends during the Civil War while cooling their heels in a Yankee prison. With apparently a lot of time to daydream, Cody said, Heiskell decided he’d like to be attorney general. Well, Nicholson came back, he’d like to be a Supreme Court judge.
In a 2000 article in the Tennessee Bar Journal, Bennett outlined two “theories” on what happened a few years after Nicholson, a Democrat, and Heiskell, a Whig Party member who sided with Democrats, got out of jail.
“According to the first theory, the method was a way to get Joseph Heiskell chosen for the job.” Heiskell and Nicholson got themselves elected delegates to the state’s 1870 Constitutional Convention and became leading members of the body.
The convention rewrote the attorney general section. After it was approved by voters and went into effect, Nicholson was elected to the Supreme Court and became chief justice. And the court then appointed Heiskell attorney general.
The second theory holds the reason was that some convention members wanted an appointed attorney general with good reason, because the position also includes that of “reporter.” It requires the meticulous keeping of reports on court cases and decisions. The public couldn’t be trusted to know who would be good at it, the theory goes.
Some convention delegates fought to keep a popularly elected attorney general. They lost.
“Interestingly enough,” Bennett dryly observed in the article, “Joseph Heiskell successfully moved that the proposal for popular election be tabled.”
Note: Bennett’s full article, a recommended read for Tennessee history buffs, is part of the Tennessee Bar Journal archives, available in pdf format HERE. (You have to scroll down a ways to get there.) Another tidbit: The Legislature once selected the attorney general – just as provided in a proposal approved by the state Senate last year that died in the House.