Arkansas Gov. Asa Hutchinson on Friday questioned whether Arkansas voters should continue to select new Supreme Court justices and Court of Appeals judges.
The Republican, a former U.S. attorney, said he wants to "give it some thought and talk to some of the legislative leadership as to the right approach [to studying the selection of judges at the appellate level] and the next steps."
Critics of the current system have suggested that new judges be appointed; eventually voters would have the option of "retaining" or removing those judges.
On Friday, Hutchinson didn't endorse or oppose that option.
"I am committed to developing a different system of selection of our appellate judges and working with the Legislature as to the best way to address that challenge," he told reporters after a speech at the Pulaski County Bar Association in Little Rock.
Hutchinson broached the subject after an audience member, Little Rock lawyer Scott Trotter, suggested the appointment of a blue-ribbon commission to study shifting to the merit-based selection of these judges.
Trotter said it's time to consider the option, saying the state's lawyers have been discussing "dysfunction" at the state Supreme Court.
Hutchinson said his comments were unrelated to recent developments.
"I am not tying it to anything," Hutchinson said after his speech. "It is certainly not any reflection on the current court at all.
"It is a consideration of campaigns that we've had and just talking to constituents as to the challenge that they have faced in making decision," he said.
On Thursday, former Democratic Arkansas Attorney General Dustin McDaniel said the recent turmoil at the top of the state's judiciary is exactly why there needs to be further discussion about changing the selection of Supreme Court justices.
McDaniel said attorneys and clients shouldn't fear a judiciary for its "politics," and the ongoing strife over the gay-marriage case's handling is reminiscent of past legal struggles, such as school integration, where it was obvious that "politics were influencing the court."
Both Hutchinson and Trotter referred to a proposed constitutional amendment drafted by state Rep. Matthew Shepherd, R-El Dorado, to have the merit-based selection of judges.
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 under Shepherd's proposal. 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 under Shepherd's proposal. 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.
At the Pulaski County Bar Association luncheon, Trotter told Hutchinson that "we all know that reform of institutions can be a function of good timing."
"It could be that the timing is ripe to revisit the subject of merit selection of our appellate judges, particularly when it comes to the Arkansas Supreme Court," he said.
Trotter noted that the Arkansas Bar Association endorsed Shepherd's proposed constitutional amendment, even though the Legislature declined to refer it to voters in the 2016 general election.
In response, Hutchinson, an attorney, said that "we have been debating the Missouri Plan for three or four decades."
He said elections for circuit and district judges provide "an opportunity for everyone in the community to get to know them and make a little bit more informed judgment. It is still retail politics.
"I have always been a consistent advocate for the popular election of judges. I still hold true to that in terms of our district and circuit judges. I believe it is time to rethink that in terms of our appellate judges," he said.
"I am willing to give that some gubernatorial support, some gubernatorial initiative to help drive that re-examination and to look at how we can better elect our judges and also have the people continue to be involved in that process," Hutchinson said.
"I think that's a challenge for us and so we will start with what Rep. Shepherd did [with his proposed constitutional amendment]. He did terrific work on that in the last session. I actually thought it was going to move forward and get support, but it didn't. I was on the sidelines on that. I hope to re-engage on that. I think it's time that we re-examine it."
Former Arkansas Supreme Court Justice Bob Brown said Friday that changing the ways top judges and justices reach the bench would only result in a "different kind of politics," and money, and would cut out the public entirely.
"You don't know the persuasion of the people doing the nominations, then there's the ultimate decision by the governor. I like it out in the open and I like popular elections," Brown said. "[Retention elections] can be dangerous ... because there is no adversarial process. It can be susceptible to a single issue like the death penalty."
In 1986, three California Supreme Court justices, including the chief justice, were targeted by death-penalty advocates for their votes against capital punishment. Voters removed all three.
John DiPippa, a dean emeritus at the William H. Bowen School of Law at the University of Arkansas at Little Rock, said he'd like to see judges appointed instead of directly selected by the voters. Judges who are appointed, especially if they rarely face retention votes, are better insulated from "day-to-day politics," he said.
But political pressures remain either way.
"The Missouri retention system doesn't prevent the potential influence of money; it just channels it into retention elections," he said. "If you're worried about judges pulling their punches on cases, it gets worse because a judge coming up to a retention election knows that those controversial votes will come back to haunt them."
Metro on 04/11/2015