Arkansas Supreme Court opposes judicial appointment over elections | Arkansas Blog

Friday, December 16, 2016

Arkansas Supreme Court opposes judicial appointment over elections

Posted By on Fri, Dec 16, 2016 at 1:14 PM

click to enlarge ELECTION BYPRODUCT: The Arkansas Supreme Court, including Justice Courtney Goodson, said today they prefer elections to appointment. But they've remained silent on doing anything about dark money in those campaigns, which bought ads such as this slam on Goodson this year.
  • ELECTION BYPRODUCT: The Arkansas Supreme Court, including Justice Courtney Goodson, said today they prefer elections to appointment. But they've remained silent on doing anything about dark money in those campaigns, which bought ads such as this slam on Goodson this year.

Members of the 2017 Arkansas Supreme Court made official today what I've reported for several months — they prefer continuation of election of Supreme Court justices rather than the Arkansas Bar Association proposal to change to an appointment system.

I'd reported earlier that the Arkansas Judicial Council had voted against the appointment proposal and that the Supreme Court was generally opposed.

The Supreme Court today issued a resolution signed by five of the seven current justices (not including Chief Justice Howard Brill and Justice Paul Danielson) and two who'll take office next year, Chief Justice-elect John Dan Kemp and  Justice-elect Shawn Womack:

Whereas we, the 7 members of the 2017 Arkansas Supreme Court, do hereby unanimously express our support for retaining elections as the method of judicial selection for all Arkansas judges and justices and do hereby oppose any proposal that would move the judicial selection process from elections to appointments in any form

Whereas in taking this position, the members of the 2017 Arkansas Supreme Court do hereby join with the Arkansas Judicial Council, which has also voted unanimously, in support of retaining elections for all Arkansas judges and justices and opposing appointments in any form.

Whereas it is incumbent upon us as members of the state's highest court to speak out on issues impacting the administration of justice. We feel that any effort to move away from our constitutionally provided election process to an appointment system creates several problems. Specifically, it strips the citizens of Arkansas of their long held right to select their members of the state's judiciary, it creates numerous potential conflicts between any governor who would appoint the justices and his executive branch agencies which routinely appear before the courts, and it reduces transparency in the process of selecting the judiciary. Our court was created by people, to serve the people, to uphold the law for the people.

Be it resolved on this 15th day of December, 2016.
Also signing were Justices Karen Baker, Courtney Goodson, Jo Hart, Rhonda Wood and  Robin Wynne.

The Bar Association has recommended appointment by the governor from names submitted by a nominating committee to a single 14-year term. Gov. Asa Hutchinson has indicated support for an appointive system, though not one in which governor was obligated to consider a nominating committee's suggestion. The legislature is expected to be asked to put an appointment system on the ballot in 2016, but its path is even rockier now.

This has always been an uphill fight, beginning with what I believe to be general voter preference for elections. Nonetheless, the Supreme Court resolution is overheated, even a little disingenuous

The proposal wouldn't exactly "strip" any rights, because it would take effect only on a vote of the people. It's also worth noting, relative to criticism of potential conflict of interest for the governor,, that federal courts are stocked at every level by executive appointments and that those judges hear cases involving executive agencies all the time.

I wish the court had spoken so forcefully on campaign issues it dodged yesterday in tweaking the Code of Judicial Conduct. It seems to have continued the fiction that judges don't know their campaign contributors, even as they attend parties and gladhand people who attend to write them checks. It stood embarrassingly silent on the influence of dark money in judicial campaigns. It expanded their ability to accept gifts from friends. It refused to tighten rules on when campaign contributions should figure in a judge's participation in a case. But the matter of judicial appointments could hit them where they live — in their pocketbooks, by potentially shortening tenure and, thus, retirement benefits. Can't have that.

Standing up for elections would have looked a lot better had the court taken steps to clean the sewer of current judicial elections.

UPDATE: Gov. Asa Hutchinson was asked about the statement later. He said it was "unusual," but was otherwise careful in his response. He said it may or may not reach voters.

UPDATE II: Later in the day, the Arkansas Bar Association adopted voted in favor, but short of the 75 percent necessary for approval, for the draft appointment proposal. Both the court's and governor's opposition were mentioned in the discussion. Bar Association President Denise Hoggard said the association might revisit support for an appointment plan during the 2017 legislative session. But, more and more, a change in the system is looking doubtful.

UPDATE III: An employee of the Supreme Court later explained to the Arkansas Democrat-Gazette that the court HAD quietly dropped the prohibition about judges knowing about campaign contributors, so that long-ignored rule is no longer applicable. But they did nothing concrete to curb the influence of money on judicial politics, particularly dark money.

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