Columns » Max Brantley

Judicial politics: It's time

by

comment

The legislature will discuss judicial elections this year.

The major questions are related:

Should we elect judges at all?

If judges are to be elected, shouldn't we have more information about who pays to influence the outcomes?

The questions became high-profile thanks to two Arkansas Supreme Court races this year. Circuit Judge Dan Kemp defeated Associate Justice Courtney Goodson to fill the vacant chief justice seat in a campaign marked by extraordinary spending by Goodson herself (she loaned her campaign $500,000) and by a shadowy private group that spent hundreds of thousands on TV to trash Goodson. In the other race, another shadowy group with unidentified contributions ran dishonest TV ads against Clark Mason, defeated by former Republican state Sen. Shawn Womack in a race for a vacant associate justice seat.

Gov. Hutchinson is among those said to be open to moving to appointment of appellate judges (the governor would be in control) and also to do something about "dark money" in judicial races.

Now comes his nephew, Sen. Jeremy Hutchinson (R-Little Rock), to confirm that the Judiciary Committee he chairs has tentatively scheduled a meeting March 31 on both election of judges and campaign financing. The date isn't firm. It might occur later in the spring.

The hearings won't be an amen corner for reform. Some influential people would like to send a constitutional amendment to voters for appointment, rather than election of appellate judges. A quirk in the Constitution allows this to be referred to the ballot as early as this coming November. Some people prefer election. Funny how a Republican governor has also unsettled some past supporters of appointment. Some favor appointment, but they fear — with some reason — that the legislature might simply put an open-ended enabling amendment on the ballot, with appointment details left to the legislature. It's a recipe for disaster. See how the legislature toyed with and neutered a so-called ethics amendment approved by voters.

Sen. Hutchinson insists he won't go along with anything less than a specific proposal for voters. But the specifics of that remain unclear for now. For his part, he wants no committee to vet potential appointees for a governor. He favors giving the governor total control, subject to legislative confirmation, like the federal judicial system. He also favors a single 12-year term for judges. There'd be no additional terms and no retention elections at which voters could toss out a judge. To have retention elections would only bring elections and special interest money back into play, he says.

Rep. Clarke Tucker will be on hand with his legislation — quashed by Republicans in 2015 — to require disclosure of sources of money for electioneering ads. As it now stands, ads that lack specific advocacy words (vote FOR or AGAINST, for example) are free from required disclosure of finances. Court precedent says more transparency is possible, though outlawing independent expenditures probably isn't. Those who like secret financing schemes — particularly business interests — will fight to keep secrecy. They'll try to pretend they have a First Amendment right to secrecy. They do not. Even a Scalia court has made that clear.

We are also likely to hear a proposal for public financing of judicial elections, perhaps funded by an additional fee on lawyers. Money could be raised privately, under this idea, if outside money surfaced in a race. To me, that sounds like a more complicated disease, not a cure. A judge is expected to make this proposal, in hopes of saving elections over appointments.

Arkansas has rarely had groundswells for better government. Though the timing seems better for a shot at judicial improvements this year, the competing interests could easily stymie all but continuation of the status quo. Status quo is better; however, than a Chamber of Commerce judicial branch that slams the courthouse doors shut to all but a favored few.

Add a comment

Clicky