Arkansans should vote on the judicial selection process

Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.
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There has been a lot of talk lately at the state capitol and in the media about “dark money” and its impact on elections, particularly judicial elections.

I recently addressed such spending and some of the legal and constitutional issues that accompany any attempt to reform the rules on “dark money.”

One proposal designed to address this issue in judicial races is to appoint, rather than elect, our judges in Arkansas. If judges aren’t elected, as the argument goes, then the impact of “dark money” on such races will be reduced, or eliminated.

Under our state Constitution, judges at all levels are elected. Historically, candidates for judge ran on a party label, but that changed in 2000 with passage of Amendment 80, resulting in non-partisan elections for judges and prosecutors. Changing that process would require another vote of the people to again amend the Constitution. In the past several legislative sessions there have been proposals to refer a measure to the vote of the people that, if adopted, would implement an appointment system. However, those measures failed to garner the necessary support for referral to the ballot.

The Bureau of Legislative Research recently reported to the House Judiciary Committee on the judicial selection practices of other states. In short, it found that 22 states elect their judges, 26 use some form of appointment and 2 utilize a legislative election process. Based on these numbers, appointment is the method of selection used by a majority of the states.

For states that do appoint judges, a process conducted in several different ways, many require a retention election for those appointed. This is a process whereby voters are asked, during a general election, to vote whether a sitting judge should keep his/her position. There is no opponent. It is simply a question of whether a majority of the voters elect to retain the judge.

The vast majority of the time, judges are retained, and by comfortable margin. There is little, if any, campaigning, electioneering or spending on a retention election.

However, in 2010, three justices on the Iowa Supreme Court were removed in a retention election. Without doubt, that vote was the result of the Court’s decision to legalize gay marriage in Iowa. Indeed, millions of dollars were spent by outside interest groups attacking that ruling and suggesting that the justices should be removed because of it. Obviously, this demonstrates that an appointment process utilizing a retention election doesn’t completely remove the influence of outside money from the process.

As stated, there is talk of referring to the people an amendment that would call for appointment of our judges. That process could take on many different forms, but the prevailing sentiment is for a gubernatorial appointment with some sort of legislative confirmation, but limited to appellate court judges. Then, perhaps after 8 years, the judge would stand for a retention election.

Such a proposal seems to have momentum in Arkansas. It has been the sole subject of 2 legislative committee meetings, the Arkansas Bar Association has formed a committee tasked with studying the issue and making a recommendation, and the Arkansas Supreme Court has formed its own committee designed to study the matter.

Not surprisingly, there are differing opinions on whether this should be done. A good number of our sitting judges are opposed to an appointment system, as is the Arkansas Trial Lawyers Association. Moreover, many legislators have expressed reluctance to eliminate the voters’ right to choose members of the judiciary.

Others, like columnist John Brummett, support an appointment process. The argument being that, based on current rules, voters have limited information about judicial candidates. They have much less information than is available for candidates for other offices, such as Governor. A merit selection process will result in a more thorough review and evaluation of the candidate, as opposed to being based on a vote that could be largely influenced by “dark money” and attack ads.

Another idea, proposed by Talk Business & Politics CEO and co-owner Roby Brock, is to retain the election process but require more disclosure of third party money and allow more information about the candidate to be made available to the public. This will result in a more informed voter.

This writer believes changes are in order. And while it is by no means perfect, I believe some form of an appointment process for our judges is best. It is utilized by a majority of our states and it has worked well for our federal government since ratification of the United States Constitution in 1788.

Ultimately, this is not a decision for me, the media or even the General Assembly to make. Since it will require a constitutional amendment, it is a decision for the voters.  This issue is worthy of the electorate’s consideration and, therefore, it’s time to refer it to the people. They will vote it up or down and we will live with that decision.