Study should be made of judicial selection process
By Roy Ockert Jr.
April 14, 2015
Gov. Asa Hutchinson weighed in last week on the possible need for reforming Arkansas’ system of choosing judges, and the inability or unwillingness of state’s highest court to address the same-sex marriage issue provides Exhibit 2 in the case for change.
Exhibit 1 was Circuit Judge Michael Maggio of Conway, whose unethical conduct led to his removal from the bench and may result in a prison sentence. Fortunately, his foolish use of social media brought him down before he move up to a higher court.
Appearing before the Pulaski County Bar Association last week, Hutchinson, an attorney, said he has always been an advocate for the popular election of judges. But in response to a question, according to an account by John Lyon of the Arkansas News Bureau, the governor agreed that it may be time to revisit the issue.
“I am willing to give that some gubernatorial support, some gubernatorial initiative to help drive that re-examination to look at how we can better elect our judges and also have the people continue to be involved in that process,” Hutchinson said.
Changing the system would require a constitutional amendment so it won’t happen any time soon. But it would certainly be appropriate for an interim study by a blue ribbon commission, as suggested by Little Rock lawyer Scott Trotter.
Late last year then-Attorney General Dustin McDaniel also said the method of selecting state Supreme Court justices should be re-examined in the light of recusals due to political pressure. His comments came in response to a motion filed by plaintiffs in the same-sex marriage case.
The motion, Talk Business and Politics reported in August, asked that any Supreme Court justice “who expects to seek election again to recuse from the case on account of legislative retaliation threatened against judges who overturn the constitutional ban.”
Since then the recusals have been plentiful in that case. Recounting all that has happened would take the rest of this column. Bottom line: three recusals, a side case over who should take part, two recusals on that issue, no decision.
We’ve got a high court tied in knots over one controversial issue that could have dire political consequences for any justices who vote the wrong way.
In previous years Supreme Court justices were fairly insulated from such political pressure. After all, they face election only once every eight years and, once elected, seldom face another opponent.
That has changed, especially since the U.S. Supreme Court’s decision in the case of Citizens United v. Federal Election Commission, which 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.
Previously, judicial elections in Arkansas have been bland affairs. Making them nonpartisan under Amendment 80 in 2001 mostly took party politics out of them, and the Arkansas Code of Judicial Conduct prevents candidates from discussing anything more controversial than where they went to school and how many children they have. Candidates financed their campaigns almost entirely with personal funds and contributions from other lawyers. Money was needed only to gain name recognition.
For the most part, judicial positions, even at the state level, offered salaries much lower than good lawyers could command in private practice — hence few candidates.
Citizens United changed everything but the salaries (we did that ourselves last year). Now those anonymous interest groups can pour money into a judicial election to influence the outcome. Since they don’t have to be accountable for their actions, they tend to adopt the same sorry tactics we’ve seen in more high-profile elections.
For example, in a campaign for an open seat on the state Supreme Court last year special interest advertising attacked one candidate, Tim Cullen, by claiming he had called child pornography “a victimless crime.” Actually, his quote referred to a single case in which he was the defense attorney, but it was taken out of context and made to appear sinister. A woman’s voice, played over an empty playground, said ominously, “Tell that to the thousands of victims robbed of their childhood.”
Cullen lacked the time or resources to respond adequately, and his opponent, state Appeals Court Judge Robin Wynne, praised in another special interest ad for “refusing to allow technicalities to overturn convictions,” won the seat.
A national study by The Marshall Project reports similar tactics now being used in other states. The Brennan Center estimated at least $13.8 million had been spent last year on TV advertising for state supreme court elections. A particularly effective theme is “getting tough on crime,” but those who finance the ads are more interested in getting judges elected who might be sympathetic on issues like tort reform, deregulation and, yes, same-sex marriage.
In each of the last two regular legislative sessions Rep. Matthew Shepherd, R-El Dorado, has proposed constitutional amendments that would change the way Supreme Court justices are chosen, but neither gained ballot status. Both proposals were rather limited, and a commission study should examine the entire system, or at least those who sit on appellate-level courts.
We don’t need our judges to be chosen by anonymous special interest groups.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.