Between the lines: Can't do nothing

Lawyer group says change necessary for judiciary

Changing the way Arkansas Supreme Court justices are chosen won't happen easily, if it does at all.

Arkansans have been electing those who serve on the state's high court since the 1800s. Nevertheless, there is growing support for changing the system and it comes from within the legal community itself.

The Arkansas Bar Association last week formally endorsed a proposal to choose future justices through a merit selection process.

More specifically, it was the bar association's governing body, the House of Delegates, that endorsed the idea of merit selection.

Actual legislation will be drafted later, but the general idea is to have a "sufficiently broad-based and diverse" nominating commission made up mostly of lawyers interview prospective candidates for the Supreme Court and recommend three choices to the governor, who would pick among them to fill an open Supreme Court seat.

Any lawyer "in good standing" with the Supreme Court could apply and would then go through a public interview process as the nominating commission narrows the field.

The recommendation further calls for "strict" time lines to govern the process, presumably to avoid seats on the high court going unfilled for long.

This proposal comes from a 17-member task force created by the bar and given the task of addressing several questions.

The first was whether judges in Arkansas should continue to be elected or instead be appointed.

The task force was specifically asked if merit selection should apply to all judges or only appellate judges and how the process should be structured, if that were the recommendation.

The panel recommended only the Supreme Court justices be appointed. Candidates for the Court of Appeals, circuit courts and district court would still be subject to nonpartisan elections.

The panel also examined whether judges should recuse from cases involving contributors to judicial campaigns, eventually recommending that could be a factor in such decisions but not an automatic requirement.

Finally, asked what safeguards could be used to best protect the judicial election process from the influence of "dark money," the task force suggested legislative reform and improvements to the rules governing professional conduct for any elected members of the judiciary.

Dark money is, of course, the kind of funding that has come into play in recent Supreme Court elections where unknown contributors staged strong, often ugly campaigns against certain candidates.

Had concerns over dark money's influence over the last three Supreme Court election campaigns not surfaced, the report said the task force might never have been formed.

But it was and a majority of its members, if not all, are apparently determined that something must be done to blunt that influence.

"What can be done, should be done," the report said, to mitigate the perceived adverse impact of dark money on the ability of the judiciary to remain fair and impartial and to maintain public confidence.

The task force called for timely disclosure to Arkansas voters of the identities of those behind dark money.

There were also specific recommendations for changing the Code of Judicial Conduct, the Code of Professional Conduct and Rules of Civil and Criminal Procedure; but even those were intended as "illustrative" of appropriate changes, not precise recommendations.

They included allowing judges and judicial candidates to know who is contributing to their campaigns and disallowing most gifts from anyone other than relatives.

There is clearly a lot more work to be done before anything could actually reach Arkansas voters.

The soonest that might happen would be the 2018 general election, should state lawmakers agree next year to refer the issue to voters.

Before anyone gets too excited about the prospect, remember that the task force didn't unanimously make its recommendations. Nor did the entire House of Delegates, much less the whole state bar association, get on board.

In making its report, the task force recognized there would be differences of opinion among its own members, among members of the bar and the House of Delegates but said the task force universally agreed that the bar "should do what we can" to assure a fair and impartial judiciary for the future of Arkansas.

"We think doing nothing jeopardizes that future."

We'll see where that idea goes from here.

Commentary on 06/22/2016

Upcoming Events