Arkansas Bar to vote on push for appointing state Supreme Court Justices

The Arkansas Bar Association’s House of Delegates will consider a proposed constitutional amendment where state Supreme Court justices would be appointed rather than elected.

The draft amendment would establish a nine-member Judicial Nominating Commission that would accept applications, interview candidates and nominate three individuals for each vacancy. The governor would select a justice from the nominees to serve a single 14-year term. Current justices are elected statewide to eight-year terms and are allowed to run for re-election.

The task force chose a single 14-year term after determining that the average length of service for a justice is 15 years, according to a notice released to the membership by the ABA Monday. The issue will be debated during the ABA’s House of Delegates meeting Dec. 16.

Denise Hoggard, ABA president, said she had not attempted to determine which way the 81 delegates are leaning. One of the purposes of the notice was to give all ABA members a chance to discuss the issue with them.

Under the draft amendment, three of the nine commissioners would be appointed by the Arkansas Bar Association, while two would be appointed by the Supreme Court. All five of those commissioners would be attorneys. The speaker of the House and the Senate president pro tempore each would appoint one member. The governor would appoint two members. The chief justice or a designee would chair the commission as a non-voting member. Elected officials could not be appointed to the commission, and commission members would be ineligible to serve on the Supreme Court.

The commission would have the right to conduct deliberations in executive session, when members of the public and the press would not be allowed to attend.

The process would be phased in over time. Current court members along with the justice elected in 2018 would serve their entire terms and would be eligible to seek nomination afterwards. Justices would be appointed to staggered terms starting in 2020 so that one term ends each two years.

The idea of appointing Supreme Court justices was formed by a Task Force on Maintaining a Fair and Impartial Judiciary. In June, the House of Delegates adopted that task force’s recommendation. A new task force was formed by Hoggard to draft the amendment. According to the ABA’s notice, the amendment was created to assure a fair, impartial court independent of improper influences caused by campaign financing and politics. The notice pointed to campaign attack ads funded anonymously in the last three Supreme Court justice campaigns. The appointment process supposedly would insulate justices and commission members from raising campaign funds.

The notice said 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. The ABA said retention elections reintroduce campaign finances and politics into the process.

Constitutional amendments can be drafted through the Legislature or through citizen ballot initiatives. Hoggard said the ABA would prefer the legislative route. The proposal would need to go through the process in 2017 in order to take effect in 2019. An amendment has been drafted, but a legislative sponsor has not been found because the House of Delegates could vote to amend the draft or to oppose it entirely.

Court of Appeals judges would still be elected under the draft amendment. Hoggard said her impression was that the original task force members believed that since those positions are elected by district and not statewide, voters have more of an opportunity to know the candidates and can make informed choices.