A better way to choose our judges

A state legislative panel is eyeing a potential constitutional referral to change the way Arkansas selects appellate judges, but judicial elections don’t need an overhaul. They need a makeover and it’s campaign spending that needs a major repair.

This year’s race for the chief justice position on the Arkansas Supreme Court was as ugly as predicted with perhaps a million dollars being spent by dark money interests to successfully sink the campaign of Associate Justice Courtney Goodson. Attorney Clark Mason was also on the receiving end of negative advertising from a little-known source in his effort for a Supreme Court seat.

The mysterious, undisclosed spending from national groups like the Judicial Crisis Network, now in its second full campaign cycle in Arkansas, has many wanting to change the way we elect judges to the state’s Supreme Court and Court of Appeals.

But do we really have a problem with judicial elections?

The complaints range from the dark money spending to the fact that many judicial candidates are not well-known. We did away with partisan labels for judicial candidates years ago so there’s no party identifier (although there are signals) to help a voter understand a candidate’s judicial or political philosophy. Also, many interpret judicial canons to curtail what judges can say about issues, so advocates for change say that judges’ races are simply name ID campaigns.

A proposal to alter our current system stems from the legal community who rightfully wants to protect the integrity of judicial elections. They have advocated merit selection of judges where a diverse group of political appointees would provide to the governor three names for a seat to a higher court office. The governor would choose from the three candidates and they would stand for re-election at the end of their eight-year terms.

I see problems with this overhaul when simpler solutions would address the real concerns: better-publicized candidates and greater disclosure of campaign spending from outside groups.

For starters, merit selection won’t provide us with any better-known candidates for judgeships. A nominating panel that will have little, if any, disclosure of how it makes its choices (think NCAA basketball tournament committee) will provide the governor three names. When the governor appoints the person, voters still won’t know this new judge and when they stand for re-election years down the road we probably won’t know much more about them save some opinions that the average voter doubtfully reads. Or maybe the dark money groups, which merit selection doesn’t address, will tell us what we still “need to know” about these “horrible” judges.

If we really want to get to know judges better, let them talk.

What’s to prevent a judicial candidate for the Supreme Court or Court of Appeals from testifying at a hearing of the joint Judiciary Committee of the state legislature? They could talk about decisions they’ve rendered (or cases they’ve tried if they’re not judges) to explain how they came to the conclusions and arguments they made. They can certainly talk about these past cases as they’d have to recuse if they encountered them again from the bench at an appellate level. Hearings would allow a line of questioning about how these judicial candidates approach decision-rendering, how they interpret the Constitution, and how they will conduct their judicial business going forward.

Think of the potential press advantages. Newspapers, TV stations and news web sites would report on the hearings as there would be certain news value. The hearings could also be archived for video replay allowing interested voters a chance to watch and decide for themselves what they thought of the candidate. In short, it would be a PR bonanza for judges who struggle to garner any attention to their races.

I also think allowing anyone to run for an appellate judge seat is good public policy and preserves the people’s right to elect – to choose – who they want to represent them. Why in this age of voter distrust and low opinion of public officeholders would we want to take away the right to vote for one-third of our system of checks and balances? Would a Justice Jim Gunter of Hope or a Justice Paul Danielson of Booneville have ever navigated a nominating committee to sit on the Arkansas Supreme Court?

While on the subject, do we have any unqualified judges currently on the Court of Appeals or Supreme Court? You might not like some of them personally, but all have the credentials and qualifications to serve. And I’m hard-pressed to name an unfit judge in modern times that has served on one of the state’s two highest courts. For those wanting to use Circuit Judge Mike Maggio of Conway as a recent example, his judgeship wouldn’t have been affected by merit selection and the current process for weeding out bad judges apparently worked. He’s been removed from the bench and just got handed a ten-year prison sentence. None of the changes being discussed would have affected his circumstances.

What really has people concerned, and rightfully so, is the ability for out-of-state special interest groups to spend millions of dollars on Arkansas races without any knowledge of who is funding these national campaign mechanisms. Attorney General Leslie Rutledge survived their attack ads in her 2014 runoff race, while mysterious groups sullied Tim Cullen erroneously and irresponsibly as supporting child molesters when he lost his Supreme Court run.

Rep. Clarke Tucker has the right idea to provide a quick window for disclosure of advertising supporters for these out-of-state groups. Candidates and independent expenditure committees have to play by these rules. The field should be leveled for these shadow groups too and Tucker’s proposed legislation would be a step in the right direction.

With that sunshine in hand, there’s a good chance it would deter “dark money” from being spent in judicial races and other campaigns. If they are revealed, at least we know who is behind the spending and would have a better sense of their agenda.

While judicial elections have been the arena where we’ve seen the most activity from these dubious groups, it’s just a matter of time before other races – federal, state and local – will see more of these efforts.

We’ve just become confused that dark money ads have tainted our judicial elections in a way that calls for wholesale change. In truth, we have two different issues in play: let’s fix the dark money spending with greater disclosure and let’s fix our judicial elections with more free speech.