There was an article in the June 30 edition of the Arkansas Democrat-Gazette that unveiled the plans of the Arkansas Republican Party to create a political action committee (PAC) called Americans for Judicial Excellence that would operate independently from the state Republican Party. Yeah, right!
The stated purpose for creating the PAC was to elect judges who more properly reflect the views and values of Arkansas voters. Said in another way, the objective is to elect judges who represent the public policy positions taken by the current conservative Republican Party majorities in the Arkansas legislature. The public statement released by Johnny Rhoda, the GOP spokesperson, couched the objectives of the PAC in traditional talking points of judicial overreaching and lack of judicial restraint. Rhoda went on to say that one objective is to screen judges and judicial candidates to be assured that they will not only express support for "our principles" but that he or she does not "rule from the bench contrary to our principles after their election to the bench." Only after the judge or candidate professes loyalty to those principles would they be invited to speak to the PAC and receive their endorsement and money. (Arkansas judicial races are non-partisan.)
This is a dangerous mindset, bolstered by the U.S. Supreme Court decision in 2010, Citizens United v. FEC. That decision obliterated the remaining constitutional difference between corporations and living, breathing human beings, insofar as politics is concerned. The court concluded that corporations stand in the same position as persons and have the same rights to free speech in all things political as do you and I. The result permits corporations to spend unlimited money to elect or defeat any candidate for office. The only kicker is that the money must be spent independent of the candidate's campaign. The mechanisms now used to further that objective is to either spend the money directly from the corporate treasury, which makes the spending transparent in most cases, or funnel untold sums to PACs that can hide the identity of the contributors and the amounts contributed. This latter method is the one in current favor. Thus we now see that same mechanism being readied by the Arkansas Republican Party for the stated purpose of only supporting judicial candidates who support conservative public policy positions. Imagine a judge who decides a case on his or her conservative, or liberal, political philosophy rather than the facts and the law!
When we vote for executives, such as presidents and governors, and legislators, we choose those whose policy positions agree with our own.
The judiciary is different. Judges are to ignore the rancor and division of the populace on policy decisions and follow the law and the Constitution, public opinion be damned. When judges are either elected or appointed with the purpose of reflecting partisan beliefs rather than the law, we have reduced, if not eliminated, the independence of the judiciary. Such a case would severely endanger our democratic foundations. Anarchy would reign supreme if our judicial system is reduced to the garden-level actions of political hacks. We see it every day in third world countries.
We have already seen the impact of well-funded shadow campaigns in other states that resulted in the defeat of state Supreme Court justices because they rendered decisions that followed the dictates of their state constitutions. The mechanisms used in those campaigns were precisely those now being contemplated by the Arkansas Republican Party. (Justices have even organized their own anti-PAC PACs, which adds to the problem.) Currently there is no reporting requirement that lets you and me know who is controlling and spending the money that has a major impact on the outcome of the elections.
Here is the bottom line: I have been elected to the bench three times. I had to raise money to run the campaigns. It is a difficult and taxing process. Ask anyone who has been there. The correlation between who contributes (and how much) and the leanings of the judge toward that contributor(s) when it comes to decision time is sometimes difficult to avoid. Anyone who tells you different is lying. Rendering an objective and independent decision can be easily done in a routine and simple case, but the tough one, the close call, the one that has impassioned onlookers and influential parties involved is subject to the wrong result if the judge is looking forward to the next election. Believe me, such a result is what bad judges are made of and can result in bad law. Those results can and should be avoided at all costs. The long-term results damage all of us in this wonderful democracy.
I'm not talking about just right-leaning PACs. I'm talking about all of them. Bluntly put, judges should not be subject to the political whims of PACs. (Judges should not be elected in the first place, but that is another story for another time.) Not only does the judge become subject to actual impropriety, the appearance of impropriety can be huge. There is zero chance that an elected judge can avoid knowing who or what organizations were instrumental in raising and spending money on his or her behalf. With that knowledge, actual bias or the appearance of bias comes into question. It shakes the public's faith in the independence of the judiciary. We should not have either individuals, lawyers, corporations or other litigants or interested parties trying to buy the balance of power in the judiciary.
As long as the system provides for the election of judges in Arkansas, and as long as contributions fuel the system, there should be limitations on the contributions permitted to be donated or spent to elect or defeat a judge or judicial candidate. Just on the issue of electing judges, if nothing else, Citizens United is very bad law. The U.S. Supreme Court should be wise enough to fashion a decision that makes the distinction between the election of judges and those who serve as executives and lawmakers. That distinction should be obvious to all who have a smidgen of understanding of human nature. The long range danger in failing to do so is real in my opinion. I decry the obscene amount of money that is spent in any political campaign, but while it is apparently acceptable to buy the executive and legislative branches of government, we cannot afford the inevitable results of buying the judiciary. We don't need a level playing field where everyone has the right or ability to raise or spend whatever it takes to get a judge elected or defeated; we need to change the very rules of the game, if not the game itself.
David Stewart is retired executive director of the Arkansas Judicial Discipline and Disability Commission currently serving by appointment as district judge in Fayetteville.