Tuesday, November 15, 2016

Arkansas Bar Association ready for vote on judicial selection proposal. Prospects dim.

Posted By on Tue, Nov 15, 2016 at 6:41 AM

click to enlarge ELECT OR APPOINT: The Bar Association talks of appointing rather than electing members of the Arkansas Supreme Court (outdated membership shown in file photo).
  • ELECT OR APPOINT: The Bar Association talks of appointing rather than electing members of the Arkansas Supreme Court (outdated membership shown in file photo).
The Arkansas Bar Association yesterday sent around the final draft of a proposal to choose members of the Arkansas Supreme Court by appointment rather than election.

Here's the final draft.
The proposal is as I had reported before — a nine-member nominating committee (with five from the Bar Association) would come up with three names and the governor would make the final choice. Or, if the governor didn't like any of the choices, the nine-member committee would choose. Justices would serve a single 14-year term. They now are elected to eight-year terms.

The Bar Association’s House of Delegates will discuss the proposal at 1 p.m. Dec. 16 at the UALR Bowen School of Law. It takes a three-fourths vote for approval. Then it would be up to the legislature to decide next year whether to put a constitutional amendment on a general election ballot to change the system.

Early prediction: It ain't going to happen.

Gov. Asa Hutchinson hasn't said so publicly, but book it: He favors unilateral gubernatorial appointment. Of course he does.

Most, if not all, of the members of the Arkansas Supreme Court like things just as they are. (And they've been striving mightily not to upset the legislature in recent decisions.) They are not a powerful political force, but they count for something.

The people — it's my unscientific observation —  prefer elections. Put judicial selection in the hands of some elites in the time of Trump? Not likely.

So do we just throw up our hands? No.

Elections to the Arkansas Supreme Court have become easily susceptible to corrupt election forces — particularly the dark money that comes from unseen places to push election outcomes with misleading and even scurrilous advertising. Actually, some corrupt forces have been transparent — the heavy spending of class action lawyers and nursing home owners is one of the strongest arguments for merit selection.

But something could be done. We could have a campaign finance system that, at least, required disclosure of the source of money behind advertising aimed at influencing elections (not merely only those ads with "direct advocacy.") Rep. Clarke Tucker has some ideas on this. But he's a Democrat. Unless some Republicans get on board with better ethics legislation, it will go nowhere. Unfortunately, some Republican groups — notably the group of Republican attorneys general of which Republican Leslie Rutledge is now a leader — are prominent among users and abusers of dark money. They like to shoot from cover.

So maybe it will be left to the people. There is talk circulating of another run at an initiated campaign finance amendment that would also plug the gaping loopholes the legislature carved in the last effort at ethical reform. I suspect this good government wasn't discussed at lobbyist Ted Mullenix throwdown for the state Senate last night at the Oaklawn Jockey Club. (No, voters didn't exactly end lobbyist-paid slopfests for legislators as they thought.)

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