by Max Brantley
Some 47 years ago, my newspaper, on the advice of its senior counsel, scuttled a story of mine about a trial judge's role in a famous corporate scandal that sent three businessmen to prison and disgraced one of the state's most colorful politicians.
I still disagree with the lawyer's advice and the paper's following it, but over time I developed at least some appreciation for the lawyer's point of view. He said the facts in my story, all from public records, cast such a dark shadow over the integrity of the court that to publish it in the statewide newspaper could destroy public confidence in the independence and impartiality of the judiciary. So what?, I thought.
I bring up that old grievance because a task force of the bar association has come up with better remedies to the peril of judicial corruption and favoritism than my newspaper counsel's, which was to keep knowledge of scoundrelry from the public unless there was clear evidence a judge had broken the law. The bar group wants to make influence buying either illegal or fully transparent and to find a way besides elections to choose judges, at least for the Supreme Court.
Judicial independence, the great doctrine of the Founders that was supposed to be the key to preserving democratic institutions, has become an urgent issue in Arkansas this year. The genius of the founders was to distribute power among two political branches of government and a third branch that was to be insulated from politics so that it would be faithful only to the constitution and the laws. If people discovered that laws could be subverted by pressure on judges the social fabric of the country would break down.
The appearance of huge bundles of money in Supreme Court races starting in 2010, the decisive "dark money" drops in three Supreme Court races and the bribery of a trial judge who was running for the Court of Appeals raised the appearance that special interests could buy what they wanted with gifts and election money not just from the legislative and executive branches but from the independent branch as well.
The task force recommended returning to the founders' plan for choosing judges, at least for the tribunal of last resort. Instead of electing them, the governor would appoint justices from a short list of qualified and virtuous lawyers provided by an independent commission. Arkansans are unlikely to vote to give up their power to elect justices, even if they find a satisfactory way of choosing the judicial commissioners.
But the other reforms, which strengthen the loophole-ridden campaign finance and disclosure laws and the ethical canons for judges, are doable—by initiative if the special interests beat them in the legislature and the Supreme Court. Many are in a campaign-reform bill by Rep. Clarke Tucker of Little Rock.
The dark-money campaigns of 2014 and 2016 would be illegal. Every group that spends money to influence a judicial election would have to fully disclose its members and the sources of the money. More importantly, the monied interests, whether corporations, lobbying groups or just very rich people, would be subject to the same restrictions as individuals who support a candidate. They would be identified on public reports, and if the limit for an individual supporter of a candidate is $1,000 that would be the limit as well for each of the Koch brothers. Under a progeny of decisions by the Antonin Scalia Supreme Court, corporations and the very rich who want to buy public offices have rights not accorded to ordinary individuals, which include anonymity and virtually unlimited spending privileges. But the court did imply that states might impose some restrictions in special cases like judicial elections.
The bar task force also wants to tighten gift rules. Trial and appellate judges could not accept gifts from anyone but a close relative. The lavish gifts that Supreme Court Justice Courtney Goodson received from her lover, a prominent lawyer with much at stake before the appellate courts, would be illegal even though she would later divorce her husband and marry him.
Judges and candidates could not solicit, accept or use the support and endorsement of political and lobbying groups, such as the Republican Party and the National Rifle Association. It implies favoritism, forbidden by the doctrine of judicial independence.
Judicial canons would force disclosure of election funds and relationships with lawyers and clients so that the rules would be clearer for judges to recuse in cases where there is a suspicion of partiality.
But the laws also must impose stiff and certain punishment. As the courts of Alabama proved last week when they convicted the House speaker for violating laws he had passed, the laws then must be enforced. We've had problems there, too.