Is a task force of the Arkansas Bar Association saying the voters of Arkansas are too stupid to elect members of the state Supreme Court?
Oh, goodness, no. Stupid is not the right word. Nor is idiotic. Nor is lamebrained. Let’s eschew such talk.
There exists no reliable data to assess in any empirical way the level of stupidity of the voters of Arkansas.
As evidence of deep and stifling stupidity, the victory by Donald Trump in the state’s Republican presidential primary was merely anecdotal, and but a snapshot. It also was limited to a subset of the state’s electorate. And it was pretty much in keeping with anecdotal evidence of temporary brain disengagement among that subset throughout the country.
What the task force is saying is that the voters of Arkansas, by design, are too ignorant to elect members of the Arkansas Supreme Court.
——————We don’t permit candidates for the state Supreme Court to discuss relevant issues, meaning the cases on which they might rule. We say that would be wrong—prejudicial to the vitally impartial consideration of evidence.
We tell candidates not to solicit campaign donations directly because that kind of thing is beneath a judge, suggestive of a quid pro quo for justice.
Amid that raging vacuum in relevant information, voters historically have chosen their state Supreme Court justices solely by name identification. That name ID has been driven by such lofty judicious practices as lathering candidates’ names on city buses, and by whether candidates bear the title of “judge” already and appear thusly on the ballot, and, just lately, by how much money secret outof-state groups, almost always right wing seeking to Republicanize state courts, spend in the state for attack ads against their opponents.
We demand that candidates for the Supreme Court seek the office as politicians, but then we don’t permit them to behave as politicians. We essentially admit that we are uncomfortable electing them, indeed squeamish about it.
We are squeamish for good reason. The purpose of an election is to install people to represent us and our views—as chief executives and legislators. The purpose of a judge is to represent justice, the law, the Constitution—great principles and great documents, not people.
Our nation’s founders wisely did not provide for election of the judicial branch. The states didn’t either until Mississippi, no ideal role model among states, and a state infamous for injustice, introduced the practice in 1832.
Today 21 other states join Arkansas in the horrid misadventure of imitating or partially imitating Mississippi.
The Bar Association appointed the aforementioned task force because of the recent advent of big secret money permitted by Citizens United that has infested our state Supreme Court races.
Last week the task force reported that it had voted 11-to-6—which was entirely too close—to recommend to the full Bar’s house of delegates at its convention in Hot Springs on June 17 that the Legislature refer to the people a constitutional amendment to stop electing the seven Supreme Court justices. Instead the task force calls for a nominating commission to consider and winnow prospects by merit for selection by the governor.
Advocates and critics alike instantly responded by citing the irony of asking the people to vote to take away their right to vote based on a proposition they might interpret as a personal insult.
But there’s another way to look at it: Asking the voters to approve a constitutional amendment to end their electoral selection of Supreme Court justices actually could be interpreted in a flattering way. It could be seen as trusting the voters as sufficiently intelligent and possessed of good judgment to know when and where they ought not to be voting.
Anyway, the proposal is not to eliminate the right of voters to choose their judges. They would still elect municipal and circuit judges, on the premise that they know those people locally and can make an informed decision.
They would give up only their right to vote on the membership of the highest court, meaning the last defender of justice at the state level.
They would give up only their right to vote for candidates they likely don’t know and are not permitted to find out much about.
They would give up only their right to vote for seven lofty positions uncommonly susceptible to cynical out-of-state money and special interests.
The issue for the Bar Association delegates in mid-month, and maybe for state legislators afterward, is whether voters should be given the opportunity to demonstrate that they are smart enough to know when they’re not informed enough.
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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers’ Hall of Fame in 2014. Email him at [email protected]. Read his @johnbrummett Twitter feed.