The Arkansas Bar Association’s House of Delegates failed to pass a resolution Friday supporting a nominating process for selecting Arkansas Supreme Court justices rather than elections – a resolution opposed by all seven of next year’s justices.
The vote was 34-20, which was short of the three-fourths majority required. ABA President Denise Hoggard said afterward that the vote means the resolution is effectively dead for now.
The resolution was created by a Task Force on Maintaining a Fair and Impartial Judiciary after the House of Delegates voted in June in favor of proceeding. It was created in reaction to recent Supreme Court elections some members feel were unduly influenced by attack ads funded by anonymous campaign donations to political action committees, often known as “dark money.”
The change would have required a constitutional amendment referred to voters by the Legislature. The amendment would have established a nine-member Judicial Nominating Commission that would accept applications, interview candidates and nominate three individuals for each vacancy. The governor would have selected a justice from the nominees to serve a single 14-year term. If the governor did not appoint one of the three nominees within 30 days of receiving the names, the commission would have appointed one of the three.
Current justices are elected statewide to eight-year terms and are allowed to run for re-election.
Before the vote, Chad Pekron, an attorney with Quattlebaum, Grooms & Tull, read a resolution opposing the idea he said had been adopted unanimously at a retreat by the five members of the Supreme Court who will return next term and the two incoming members. Those justices and justices-elect said voters should continue to elect the court’s members, that a nominating process would strip citizens of their rights, and that a nominating process would create a separation of powers issue and create potential conflicts between the governor and the courts. They said a nominating process would reduce transparency.
Under the draft amendment, three of the nine commissioners would have been appointed by the Arkansas Bar Association, while two would have been appointed by the Supreme Court. The governor would have appointed two members, and the speaker of the House and the Senate president pro tempore each would have appointed one member.
Pekron said he had been asked by the Supreme Court justices to share their resolution opposing the nominating process. He said multiple members had told him they believed selecting their own members to be unseemly. Pekron said he could support some type of merit-based system, but not this one, pointing out that five of the nine members of the nominating commission would not be democratically accountable because they would be appointed by the ABA or the unelected Supreme Court.
He said the Legislature does not support the resolution and that the ABA’s credibility with the Legislature is already low. Passing the resolution would cause the ABA to lose influence when discussing the issue.
Jon Comstock with Comstock Conflict Resolution Services in Rogers, who was chairman of the task force that created the resolution, said the fact that Supreme Court justices had expressed opposition to the resolution made him uncomfortable. However, he argued that the system is going to change and the ABA needed to offer leadership.
The task force argued that 22 states select Supreme Court justices through some combination of judicial nominating commissions and/or gubernatorial appointments. Some states, including Missouri, appoint justices who then stand before voters in a retention election. Comstock said no states that have adopted a selection process has switched to an election process.
Tim Cullen, an attorney and Supreme Court candidate in 2014 who was the target of dark money-funded attack ads, said the proposal was imperfect but it would give the ABA a seat at the table. He said he supported elections in the past, but recent Supreme Court races have been dominated by unknown outside interests. The Founding Fathers had chosen an appointment process for the federal judiciary because it allowed the judicial branch to stay out of politics, he said.
Two delegates, Albert Thomas from Heber Springs and Michelle Huff of Batesville, said they had polled their attorney constituents and found overwhelming opposition to doing away with elections. Huff said her attorneys had said it smacked of elitism.