Plan for picking justices in state limits voter role

The chairman of the House Judiciary Committee has drafted a plan that he believes is needed to preserve the integrity of the Arkansas Supreme Court: cut out the voters and the money, and let the experts weigh in.

The proposal, from Rep. Matthew Shepherd, R-El Dorado, would end the state’s 16-year-old system of nonpartisan elections for high court justices and institute a “merit selection” system.

Shepherd’s plan is one of four constitutional amendments proposed by lawmakers to change the state’s judiciary. House Joint Resolution 1005 is intended to curb the negative effects of elections, which Shepherd said are becoming more politicized and more costly.

Instead of by popular vote, would-be justices would be vetted by a 15-member commission whose members would be appointed by the governor’s office, the Arkansas Bar Association, the speaker of the House and the Senate president pro tempore. The commission would recommend three names to the governor, who would then pick one for the job.

Instead of facing re-election, each justice would face a retention vote in a general election after serving an eight-year term. Arkansas residents would cast a simple “yes” or “no” vote on whether to keep the justice on the bench.

If the vote was no, the commission would make new recommendations, and the governor would choose a new justice.

Such a system, often referred to as the “Missouri Plan,” is in effect in 16 other states. Another nine states use similar systems.

Judicial candidates are barred by ethical standards from discussing legal issues that they might have to adjudicate if elected. Yet they campaign and raise money just like other candidates whose names appear on the ballots with party labels.

“The candidates can’t talk about the issues. So what is there really to talk about? They can talk about experience, more biographical type things, but at the end of the day, is trying to raise significant campaign funds to get elected, is that the best way for us to select justices for the top court?” Shepherd said. “We’ve seen races become more and more expensive. I’m concerned. This is something to be looked at.”

According to a 2013 study by the American Constitution Society for Law and Policy, spending in state supreme court races is at an all-time high. The group said $83.3 million was spent in state races in the 1990s, while that number more than doubled to $206.9 million the next decade.

The study, which analyzed campaign donations in judicial elections across the country, found a correlation between the amount of campaign donations from businesses and the number of business-friendly rulings by judges.

Spending in Arkansas is increasing too, Shepherd said.

In 2000, current Chief Justice Jim Hannah spent $151,230 on his campaign. Ten years later, Justice Courtney Goodson spent $657,452.

There is a growing concern about the effects of outside money, as well, Shepherd said.

In the 2014 race between attorney Tim Cullen and Justice Robin Wynne, a Virginia-based group called the Law Enforcement Alliance of America ran an estimated $400,000 TV ads that painted Cullen as being soft on sex offenders. Those ads prompted indignation throughout the legal community.

Shepherd said that given the trajectory of judicial campaign trends, his proposal would safeguard the integrity of the high court in the future.

“Is the influx of [outside group] funds into a race such as this, is that really the best say we can go about picking those justices? It’s a concern,” he said. “The merit-system process gives us the opportunity to remove money from the selection process.”

But current and former chief justices say money, like water, will always find a way in.

In his 2014 State of the Judiciary speech, Hannah said that spending on judicial elections has corroded public confidence in judges and the electoral system as whole. Despite that, Hannah said, he is committed to nonpartisan elections.

Retention votes often are affected by money as well, he said.

After a 2009 ruling to strike down Iowa’s prohibition on gay marriage, three justices — who combined had more than 30 years of experience on the Iowa Supreme Court — were ousted in a retention vote after an expensive campaign waged by conservative groups.

“Large amounts of out-ofstate money have passed into the state to defeat judges who appear on the retention ballot based upon an unpopular decision,” Hannah wrote. “Judges who are the subject of retention are often at much greater risk than they would be if they were facing a known opponent.”

On Friday, former Chief Justice Bob Brown voiced skepticism about “merit selection” systems.

“Merit selection … in a retention election can be a dangerous thing. One individual standing for retention and a single issue can be brought against them,” Brown said. “You’d still have elections, the fundraising … that you do with a popular election.”

Brown said he doubted that Shepherd’s proposal, if it reaches the ballot, would have much success with voters.

Jesse Rutledge, an official with the nonprofit National Center for State Courts, agreed.

Merit systems were adopted mostly in the 1950s and 1960s. But by the 1980s, there was a backlash from voters and lawmakers about allowing a selected few to handpick states’ top justices.

Most recently, voters in Nevada in 2010 rejected an amendment similar to Shepherd’s by 58 percent to 42 percent.

“The last time a state moved from elections to a [merit system], [Ronald] Reagan was president,” Rutledge said. “[Such efforts] constantly hit the buzz-saw of public opinion.”

Shepherd said that although the public wouldn’t be directly involved in picking a judge, residents do have indirect power because they select the governor and the lawmakers involved in the process.

“I think there’s plenty of ways to have the opportunity to influence the selection, and clearly they have the opportunity to influence the retention of those justices,” he said. “There’s no perfect system. But this gives us the opportunity to remove money, or to significantly reduce the impact and influence of money, on these positions. It’s about the future.”