Arkansas should consider changing method of selecting judges
By Roy Ockert Jr.
Aug. 26, 2014
Arkansas needs to change its system of selecting judges, and we need to do it before the people who elect them lose confidence in their courts.
That’s not to say the courts are doing such a bad job, but we’ve seen the future and it’s not good.
Here’s the problem: Political action committees, fueled by tons of money donated by anonymous people, corporations and special interest organizations such as unions, are beginning to decide who will preside over our courts.
Yes, we the people are still electing our judges, but the process is becoming corrupted. The door was opened by the U.S. Supreme Court’s decision in the case of Citizens United v. Federal Election Commission, which essentially said that special interest groups can raise huge sums from anonymous donors and spend the money to defeat certain candidates without being subject to the same sort of restrictions that individuals or political parties have.
About the same time Arkansas switched from a partisan system of electing judges and prosecutors to a system that, in theory, is nonpartisan. Judicial candidates don’t use party labels, although we vote on them at the same time as party primaries.
Arkansas’ Code of Judicial Conduct already limited what voters could know about judicial candidates, prohibiting them from "making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court." That means a candidate can’t say much more than what’s on his or her biography.
They also are severely limited from raising campaign funds, which was already difficult for judicial candidates. Few people, other than attorneys, ordinarily take enough interest in who’s running for judge to make a contribution.
Enter those political action committees, some of which do care very much who our judges are. They can pour money into a campaign, smearing the candidate they don’t prefer, leaving the other candidate without resources to respond.
It already has happened. In May state Court of Appeals Judge Robin Wynne of Fordyce defeated Little Rock attorney Tim Cullen for a seat on the state Supreme Court. An outside group calling itself the Law Enforcement Alliance of America spent more than $300,000 on television ads attacking Cullen, focusing on a bogus allegation that he had argued child pornography was a "victimless crime."
Wynne may or may not be a good judge, but he knew the LEAA ad was misleading and refused to repudiate it.
Some people in Conway, including Republican Party operatives, have formed a PAC called Americans for Judicial Excellence, whose mission is to support “conservative constitutional jurists.” Supposedly, it operates independently of the Republican Party.
Sounds high-minded but that’s a blatant attempt to inject a political philosophy into what’s supposed to be a nonpartisan process. And a spokesman said the group will screen judges and judicial candidates to determine whether they will support "our principles" and will not rule “contrary to our principles.”
That would certainly be a violation of the Code of Judicial Conduct.
Worse, that puts the judge or potential judge in a position of needing to curry favor with such a special interest group to have sufficient campaign funds. Don’t think there isn’t a direct correlation between who pays for an election and who wins the election.
Witness the case of Faulkner County Circuit Judge Mike Maggio, who recently was barred from ever being a judge again in Arkansas. (He does get to continue collecting his $138,981.96 salary until the end of the year for doing nothing.)
The state Supreme Court made that decision because of Maggio’s astonishingly inappropriate comments on social media about his cases and the justice system. However, the high court apparently won’t rule on an even more serious transgression. While a candidate for the state Court of Appeals, Maggio accepted campaign contributions from PACs financed almost entirely by nursing-home owner Michael Morton of Fort Smith.
Why is that so bad? On the same day the PAC checks were written Maggio was presiding over a hearing in which one of the nursing homes owned by Morton was asking him to reduce a Faulkner County jury’s $5.2 million judgment against the nursing home in a suit filed over the death of a patient. Three days later Maggio reduced the judgment to $1 million.
That’s why we must keep the influence of big money and politics out of judicial elections. It’s critical that our judges can administer justice on the basis of the Constitution and the law, rather than who can help them politically.
How can we do that? Arkansas Attorney Dustin McDaniel recently said he had come to believe that a system similar to Missouri’s would work better, and I agree.
Under the Missouri plan a nonpartisan commission selects three eligible candidates for a vacant judicial seat, and the governor then appoints one of them. Once the judge has served for at least a year, the people vote in a general election about whether to retain him or her. If retained, the judge serves a term of 12 years.
That’s not a perfect system, nor would it eliminate politics completely. Tennessee, which has a similar system, recently voted to retain three judges after outside groups spent heavily to oust them. But it would be an improvement on the system that has developed in Arkansas.
Roy Ockert, editor emeritus of The Jonesboro Sun, can be reached by e-mail at royo@suddenlink.net