Could Arkansas be on the verge of changing the way it chooses judges?
Some groundwork is being laid in that direction.
Recommendations released last week from an Arkansas Bar Association task force called for an end to the election of the state's seven Supreme Court justices.
Instead, the state would pick its top judiciary through merit selection, assuming voters would go along with the idea.
Any such shift would require a constitutional amendment.
This conversation, of course, follows contentious Supreme Court elections, which involved a lot of out-of-state money being spent to influence outcomes -- most notably this year.
The task force is made up of lawyers and judges who concluded that the present system of electing Supreme Court justices is at odds with the principles of a judicial branch in which the courts are supposed to be "above" the political fray.
"The last three Supreme Court election campaigns in Arkansas demonstrate how local campaigns can be overwhelmed by the dark money effort," the report said.
"There is every reason to believe that 'dark money' will continue its aggressive presence in Arkansas -- and will continue to unduly influence Supreme Court election outcomes."
The solution the task force has come up with is to form a nominating commission that would narrow applicants for the bench to a list of three, then leave the governor to choose among them for the next justice.
The task force report is really only a preliminary step in a long process.
The recommendations next go to the Bar Association's house of delegates for consideration, when the group gathers for its annual meeting later this month.
If they buy in, there will still be a lot of work to be done to further develop the proposal before it could ever get to Arkansas voters.
Still, what the bar is doing is addressing a problem that has existed with electing judges long before the heavy influence of dark money began.
Eddie Walker, the Fort Smith lawyer who heads the state Bar Association, explained that, for average voters, there is a dearth of information on the judiciary.
"I would not suggest there is an ignorance," Walker told an interviewer. "But it's difficult to understand what it is you're supposed to be assessing if you don't know generally what the function of that person is or generally what kind of characteristics are important."
The situation leaves voters, most of whom have no direct involvement in the courts, to be swayed by name recognition or advertising, including the heavy-handed negative advertising that is often fueled by dark money, its source never known to voters.
Even in tamer times, when negative politics were mostly limited to whisper campaigns rather than being broadcast on TV and radio, voters were often disadvantaged to know much about judicial candidates or their views.
Most of the candidates then and now cite judicial ethics restraints when asked probing questions about their perspectives on issues.
Before the judicial offices were made nonpartisan in 2000, about the only other piece of information voters had was whether they were running as Democrats or Republicans.
Now, as nonpartisan candidates, they typically show up at both parties' rallies, introduce themselves and shake a lot of hands. They don't really give voters much more to go on than that and never have.
Word-of-mouth endorsements -- or red flags -- have always played a huge part in the election of judges. Voters with no links to the courts have frequently relied on recommendations from friends or family or others who are involved in the judicial system and have reason to know more about candidates.
Many other voters are left to winnow out what information they can from the positive advertising images offered by the campaigns themselves and the negative blows broadcast by groups like those that played so heavily in this year's Supreme Court races.
Again, that's why the Arkansas Bar Association set its task force to work after the judicial elections were decided this year.
"We believe the public is best served if they can make an informed decision," Walker said. "If you have people voting on only name recognition or advertising, then you're obviously not in a position to make an informed decision."
It's a big leap from elections to any other system, but Arkansas could nevertheless be on the road to some sort of merit selection.
Commentary on 06/05/2016