Rethinking judicial elections

Are we doing justice for our judicial elections?

That is a question that has intrigued me for several years. I’m old enough to remember when voters agreed to make state judicial elections independent — not subject to political party labels as they once were. That was a good move to ensure the integrity of the courts.

Even in those days and certainly in recent years, Arkansans are limited in knowing much about the people whom they choose to preside over impartial and fair justice in the court system.

Members of the legal profession and some politicians have suggested moving to a merit system of appointed judges. In theory, a list of candidates would be submitted by a group such as the Arkansas Bar Association to the Governor or a review panel for selection. After a few years, that appointed judge could be subjected to a recall to give voters a chance to remove him or her from office or allow them to continue serving.

This merit system would require a change to the Arkansas Constitution, and I’d be willing to bet that voters would be unlikely to “vote” to give away their “right to vote” for one of the three branches of government. In this day and age, giving up voting rights on something as crucial as who a judge may be seems far-fetched.

Is there a way to work within the current system to make more informed choices?

Yes, voters can research the candidates to educate themselves, but this does not happen on a widespread basis. We live in a TV ad and social media world when it comes to voting.

Thirty-second ads largely shape our opinions on candidates — including judicial ones — and sometimes the dark money ads that we’ve seen of late can indeed sway public opinion. I’d even go further in saying that the emergence of dark money ads in the wake of the Citizens United decision has led to the furor to rethink how we select our judges.

Likewise, social media plays an increasingly important role in candidate selection. There is an upside in that friends and associates can share their connection with candidates more efficiently. Still, on the downside, it does not take much to torpedo a candidate’s reputation with a fake news story, political smear or unsubstantiated claim.

Dramatic regulation and change to the existing political environment seem unlikely to happen anytime soon.

I’ve proposed in the past that judicial candidates could participate in a public forum where they field questions to share more about how they would serve from the bench. My initial thought was to have the Judiciary committees of the Legislature quiz appellate level candidates. In talking with several in the legal field, including a former Supreme Court Justice, there is understandable concern that the exchange between two branches of government — legislative and judicial — could lead to a Washington, D.C.-style atmosphere in Arkansas.

Perhaps a better route is for the media — just as it hosts significant debates for U.S. Senators and Arkansas Governors or even legislative candidates — to also host a forum for contenders for the Arkansas Supreme Court or the Arkansas Court of Appeals.

Judicial candidates often state they can’t talk about anything other than their biographies and job experience. There are limitations based on the Code of Judicial Conduct that should be adhered to; however, judicial candidates can speak about quite a few more topics than you’d think.

A judicial candidate can respond to matters of precedent, and they can share their thoughts on legal philosophy as it pertains to how they would justly rule from the bench. For instance, how do you view when the time is right for a judicial ruling to adapt to modern society versus how it was constructed in 1874 when our state Constitution was adopted? How would you handle a personal viewpoint if it contradicts current law? If you view yourself as conservative or liberal, exactly what does that mean in how you would interpret the law?

What would be wrong with providing a forum and inviting candidates for the highest courts in our state to share their opinions on these personal and constitutional positions? Would we be more informed as to their beliefs and whether they line up with ours? Might we learn something valuable in a deeper dive of their biographies that could cause us to support or oppose their candidacies? Could the forum be used to correct inaccuracies that may be in the public discourse about a candidate?

Might we even be impressed with the level of learnedness in the law that the candidates would display in a public forum? Could a public forum generate news for various outlets as well as provide a public record for voters wanting to educate themselves more on these races? It couldn’t hurt.

I invite the candidates and my colleagues from the Associated Press, the Arkansas Democrat-Gazette, AETN, and other print, online, TV and radio outlets across the state to participate. I’ll organize the logistics and provide a venue.

It would serve the public well to provide a deeper understanding of the candidates who will deliver final justice on business issues, family life, crime and punishment, and matters of life and death. It wouldn’t require a change to the Constitution. And in the end, we might help voters make more educated decisions on elected officials who interpret the laws that impact our daily lives.

Editor’s note: Roby Brock is editor-in-chief of Talk Business & Politics. He can be reached at [email protected]. The opinions expressed are those of the author.