Friday, October 7, 2016

Supreme Court merit selection proposal in legislative hands

Posted By on Fri, Oct 7, 2016 at 10:19 AM

click to enlarge CHOOSING THE BOSSES: A proposal to appoint rather than elect members of the Arkansas Supreme Court is under study at the legislature.
  • CHOOSING THE BOSSES: A proposal to appoint rather than elect members of the Arkansas Supreme Court is under study at the legislature.

The Arkansas Bar Association's effort to craft a proposed constitutional amendment for so-called "merit selection" rather than election of members of the Arkansas Supreme Court has produced a draft now in the hands of the Bureau of Legislative Research.

It is leaking around to legislators, members of the Supreme Court and others. Forecast of outcome: Cloudy.

UPDATE: I've received a copy of the draft now.

Here's the proposed constitutional amendment.
Here's what I was told about the proposal:

* The governor would choose a person to fill a court opening from three names submitted by a panel composed of nine members — five from the Arkansas Bar Association (chosen in a procedure decided outside the Constitution by the Bar Association), two by the governor and one each from the House speaker and Senate president pro tempore. If the governor didn't like the choices, he or she could do nothing. Then the nominating committee would make the selection.

* Appointments would be for a single 14-year term. There'd be no second term. That means no "retention" election that might influence bench decision making.

* The amendment would be referred to voters in 2018. The first opening thus would be in 2020, current Justice Jo Hart's seat. Current court members would be eligible for appointment under the new scheme. All would complete existing elected terms, but there'd be some differences in lengths of the new appointed terms in the initial round so as to provide, in the future, for a selection every two years. Justices Robin Wynne, Karen Baker and Rhonda Wood have terms ending in 2022. The terms of Chief Justice Dan Kemp and Shawn Womack end in 2024. Justice Courtney Goodson's seat is on the ballot in 2018. The terms currently are eight years.

This would be sold as removing politics from the judiciary and replacing it with merit selection and providing a greater appearance of fairness. Money — particularly dark money from unknown sources — would no longer influence outcomes. Judges would be insulated both from elections and pure political appointment. A "level playing field" is one talking point I'd imagine we would hear.

Rep. Matthew Shepherd, who's been a champion of judicial appointment, reportedly is reasonably warm to this proposal, though I'd guess he recognizes the political shortcomings.

Republican Gov. Asa Hutchinson won't support it. He wants the "federal system."  In this, the governor makes the appointment, subject to confirmation by the Republican-controlled Senate. That would be far more political than the bar's appointment proposal. Advocates of the bar proposal will argue that political dynamics can change. You can be sure Hutchinson wouldn't have liked a "federal system" when Democrats controlled government top to bottom, they'd say. The nature of politicians with power, however, is to believe things will never change, for a thousand years or so or at least through their term of office. 

The ruling cabal on the Arkansas Supreme Court — Justices Jo Hart, Rhonda Wood, Karen Baker and Courtney Goodson -- is believed cool to the bar plan. For one thing, a nominating panel might find one or another of them unqualified for another term.

The biggest hurdle will be convincing Arkansas voters, who like elections, to give them up. I could provide a number of reasons why the mood should be different (nursing home influence particularly), I'm not aware of a great dissatisfaction with the Supreme Court as it now stands. The court's dodging of the same-sex marriage decision had just this political dynamic in mind.

Lots more to come in the legislative session, when the General Assembly puts amendments on the ballot. A complication could also be another lawyer battle — a renewed fight  over tort reform. This will be only partially addressed (and badly) if the nursing home protection amendment reaches the ballot and is approved by voters. The issues have a relationship. If you move to merit selection of a court that no longer controls its rules (as the business lobby and many in the legislature would like to achieve in sweeping tort reform), what difference does it make?

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