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Retirement unleashes jockeying, legal questions about future of Tennessee's highest court

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NASHVILLE, Tennessee — When Gary Wade was appointed to the state Supreme Court in 2006, the self-described "mountain boy from the Smokies" planned to serve the eight-year term and retire from his distinguished judicial career.

That was before Republican Senate Speaker Ron Ramsey decided to bankroll an effort to defeat Wade and two fellow justices appointed to the state's highest court by a Democrat. Setting retirement plans aside, Wade helped spearhead the campaign turn back Ramsey's efforts and win the three justices another term on the bench last year.

"I felt it was extremely important for the court to stand firm and hold on to the basic concept that the courts are free of politics," Wade said in a telephone interview.

Having won retention of the three justices, Wade recently announced that he will retire next month. That has set off wave of speculation about possible successors, and legal questions about how the position will be filled given the passage of a constitutional amendment that for the first time gives the Legislature the power to reject the governor's Supreme Court nominees.

Lawmakers couldn't agree this year on a mechanism to reject judicial nominations — both the House and Senate wanted to guard against the other chamber having too much say in the matter — meaning the issue was punted to next year's legislative session. If they still can't agree, any appointment by Republican Gov. Bill Haslam would be considered approved within 60 days of the Jan. 13 start of the session.

So what's the five-member high court without a tiebreaking vote between September and possibly March? Not to worry, said Chief Justice Sharon Lee.

"Choosing the next justice is an important decision for the State of Tennessee and there is no need to rush it," said Lee, who along with Wade and Cornelia Clark was among the justices targeted by the Ramsey campaign.

The court will continue to hear oral arguments and issue rulings, she said. Should there be a 2-2 split decision in a case, the court will reschedule another oral argument for after the new justice is appointed.

Lee noted that the court has operated with four justices as recently as 2007, when a prolonged fight between then-Gov. Phil Bredesen, a Democrat, and the state's judicial nominating panel took 10 months resolve. In that instance, Bredesen ended up appointing Republican Bill Koch, who retired last year.

Ramsey, who spent $605,000 from his political action committee on the failed effort to defeat any of the three justices, has publicly delighted in the fact that Wade's retirement will clear the way to a court controlled by Republican nominees. The Blountville auctioneer's opponents from last year's retention campaign take issue with that goal.

Republican attorney Lew Conner, a former state appeals judge, praised Wade for being "unwilling for the sake of the system to be basically bullied into retirement."

"We members of the bar and other members of the bench are looking for a Supreme Court that calls them right down the middle," Conner said. "Following precedent and making decisions based on applicable law. And not politics."

Now that the vacancy is pending, there is rampant speculation about who will apply — and whom Haslam might nominate.

Cross off the list any prominent attorneys serving in the Legislature. The state constitution bans the governor from appointing sitting lawmakers to the court.

Another popular theory is that Haslam could choose his friend and former top legal adviser Herbert Slatery, who was just named to an eight-year term as state attorney general last year.

When asked about that possibility, spokesman Hawlow Sumerford said in an email that Slatery is "is entirely focused on his duties as attorney general." Sumerford did not respond to a follow up email about whether that means Slatery would rule out a bid for the high court.

If Haslam's previous choices are any guide, the existing appellate bench is a likely source of the next justice. The governor's two appointments to the Supreme Court so far — Jeff Bivins and Holly Kirby — were chosen from the state Court of Appeals.

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