BusinessTN

When J. Houston Gordon’s name was first submitted to Gov. Phil Bredesen as one of three candidates to fill a vacancy on the bench of the Tennessee Supreme Court, one had to like his chances.

Gordon has the biography: From humble beginnings on a rural Tennessee farm feeding and milking cows, Gordon paid his way through college and law school by raising feeder pigs, measuring cotton acreage and driving a meat truck. After a stint as an electrician’s helper, Gordon began clerking at law firms and, after four years in the U.S. Army Judge Advocate General Corps, branched out into private practice. As a respected plaintiff’s lawyer from Covington, Gordon has made millions doing personal injury work during his 36-year career. He also has dabbled in commercial real estate and other business endeavors, including the opening of Covington’s first fine-dining restaurant. He has even written a book, The Plains of Abraham, a self-proclaimed “page-turning premier novel of international suspense and intrigue.” (Granted, what lawyer doesn’t have a book in the works these days?)

Gordon has the legal chops. His decades of work in the legal arena have left a definite mark in the annals of criminal law. In United States v. Burton, the Court of Military Appeals adopted three of five speedy trial requirements Gordon suggested. The three-month speedy trial requirement was the precursor of a rule later adopted throughout the U.S. criminal system. Also of note, Gordon appealed famously, albeit unsuccessfully, on behalf of Lt. William Calley Jr. in the nationally publicized My Lai massacre trial in the 1970s.

Outside of his domain of personal injury law, he has worked on myriad cases, including military, family, administrative, estate planning, banking and criminal law matters. “"My clients are as varied as our society,"” he wrote last summer in his 38-page state Supreme Court application.

Completing a candidacy-enhancing power trifecta, Gordon has the political clout. He held the high-ranking post of Tipton County Attorney in the early 1980s and later chaired the Tennessee Democratic Party. In the 1996 U.S. Senate race, Gordon made the type of hopeless political banzai run at powerhouse Fred Thompson that usually guarantees the accumulation of party faithful markers for turn-in somewhere down the road. Now, somewhere down that very road, he finds himself a candidate for a position chosen by a Democratic governor with whom he has been widely considered to be friends.

“When Houston ran for Senate against Fred Thompson,” says a Democratic Party operative who has known Gordon for decades, “Bredesen held a fundraiser for Houston in his private home, which may have been the only fundraiser he held there.”

Topping it all off, Gordon has the intangibles—friends and foes alike say that he is personable yet not a backslapper, that his intellect is vast, yet he is not a reclusive law geek. Furthermore, not one but two positions would come open in the same year, and J. Houston Gordon would be nominated for both.

Yes, the stars were aligning, only somehow—thanks to a “30-year hiccup” in the state’s unique selection process and a governor doggedly devoted to diversity—they were not aligning in Gordon’s favor.

A man, a plan, a hiccup
Last year, within a week of one another, both Justice E. Riley Anderson and Justice Adolpho Birch Jr. announced their retirements, effective on the same day. The departure of Birch deprived the state’s highest court of its sole African-American jurist. Their departure would trigger another iteration of the Tennessee Plan, a judicial selection process both responsible for Gordon’s shot at a career capstone as well as partially to blame for his difficulty in reaching it.

Up until 1971, Tennesseans elected judges. That year, one year after J. Houston Gordon passed the bar, the state’s General Assembly looked at the staggering amounts of money being poured into judicial races and decided a change was needed. The Assembly adopted a modified piece of Missouri legislation meant to address this problem. Initially, what would become known as the Tennessee Plan only applied to the appellate courts. In 1993, and countering a move by the Tennessee Republican Party to pack the Supreme Court with members of its caucus, Lt. Gov. John Wilder proposed a further adaptation of the original legislation, extending its application to the Supreme Court selection process. Wilder also added an applicant evaluation component. The process, which went into effect the following year, today has evolved into one in which an appointed 17-member commission evaluates judicial candidates. The commission then presents the three finalists to the governor for a final pick. Should the governor reject the first panel, the Commission will present a second, from which the governor must select one. Once appointed, the jurist then must be approved on a state- wide ballot. The process was as much an effort to insulate judges from politics as it was aimed at enhancing the public’s respect of the judiciary.

But one cannot take politics out of politics, says one Tennessee lawyer who recently applied for a state Supreme Court seat. Adding to the selection process a group of people who represent various special interests (criminal defense lawyers, trial lawyers, Tennessee Bar Association, insurance industry, etc.) does not eliminate conflict of interest and the risk of potential deadlock. Nonetheless, most state politicians, lawyers and judges seem to agree that the process is the best system of checks and balances figured out to date.

“The plan is devised by man,” says retired Justice Birch. “This is about as close as we can come. I haven’t identified any areas that can be fixed because I accepted the plan as it is.”

As it is, the Tennessee Plan might be expected to experience a glitch once every 30 years or so. Too bad that first hiccup in the selection process occurred just as opportunity was knocking for J. Houston Gordon.

Following the retirements of justices Anderson and Birch, and in keeping with Tennessee Plan guidelines, the Judicial Selection Commission reviewed a wide pool of applicants and presented Gov. Phil Bredesen with three candidates: Davidson County Chancellor Richard Dinkins, Court of Criminal Appeals Judge Gary Wade and Gordon. Bredesen appointed Wade to fill Anderson’s seat.

With the first vacancy filled, the selection commission presented a second slate of candidates, which again included Dinkins and Gordon, as well as Memphis lawyer Buck Lewis III.

Then things got complicated. On July 24th, citing family responsibilities, Dinkins, the only African American on the second slate of candidates, withdrew his name from consideration. The same day, Bredesen told the selection commission that he needed a new slate, which included “qualified minority candidates.” Bredesen expressed a desire to make the final appointment by September 1st. After some technical back-and-forth, the commission and the governor were at loggerheads. The governor maintained that he had rejected the entire second slate of candidates and wanted a new one, while supporters of Lewis and Gordon, as well as much of the selection commission, wanted the duo to be considered again.

Thus was born the lunch topic du jour (and as matters stretched out, the week and the month) among lawyers across the state. Some were convinced that the trial lawyers lobby, already mad at Bredesen for workers’ compensation reform, was pressing the governor to the wall with Gordon. Others maintained that Bredesen simply could not bring himself to appoint an all-white Supreme Court.

In all fairness, nobody, even Bredesen, contested Gordon’s qualifications. The issue was of a very technical nature.

As outgoing Attorney General Paul Summers declared in late summer, presenting the same candidate for consideration twice was against the law. (Incidentally, Summers’ retirement created another unusual scenario in which a depleted, even-numbered Court was tasked with selecting the new state attorney general. Some lawyers anticipated a deadlock, but the four Supremes, as the justices are often referred to on Capitol Hill, chose Bredesen’s longtime friend and personal lawyer Bob Cooper.) The commission ignored Summers’ opinion and pressed forward with Gordon, who was seen as the most qualified candidate on the second slate. Bredesen filed suit on September 18th. Shortly thereafter, Bredesen easily won reelection and seemed more determined than ever to have an African-American jurist in the Supreme Court chambers.

For his part, Gordon looks to his own past to keep things in perspective: In 1973, in response to his defense of Lt. Calley, he was accused in a Washington Post editorial of “justifying mass murder.” After that, he muses, “everything else is just stuff.” Still, Gordon filed a post-Thanksgiving motion to intervene in Bredesen’s litigation with the judicial selection commission, in which he said that the Dinkins’ withdrawal left the governor with an incomplete panel from which to choose a new Supreme Court justice. In addition to the filing, Gordon resigned from the Tennessee Lottery board, to which he was appointed by Bredesen in 2004. Those moves were largely considered as Gordon’s peace offering to Bredesen. The offering, as well as the motion, failed to advance Gordon any closer to a Justice’s seat, as Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled in favor of Bredesen a few weeks later. Gordon remains philosophical. “I was flattered by the fact that the judicial selection commission found me the best qualified candidate three times,” he says. “I’ve been caught in a controversy I didn’t anticipate. The last few months have been somewhat distasteful. I do not understand all that has happened, but maybe in my next life I will.”

Gordon can perhaps take additional solace in his own words concerning winning and losing on his Supreme Court application: “I have not always won,” he wrote. “I have experienced the trauma of divorce, the highs and lows of being a parent. I have lost a statewide election … I am also aware that losing is not always a bad thing.”

Nor is it necessarily permanent. With the anticipated retirement of Chief Justice William “Mickey” Barker, Gordon, who turned 60 last September, may find himself nominated again in two years. And there’s always the Sixth Circuit Court of Appeals. “Especially if we elect a Democratic president in ’08,” says one of Gordon’s supporters. Regard- less, Gordon will be able to look back on 2006 and wonder, “What the...?”