The right to vote in an election is a precious thing but so is the fundamental need to have an independent and impartial judiciary. For years I thought our state was exactly right to have elections to choose our appellate judges but I now believe the time has come to change the way we decide who will serve on the Arkansas Supreme Court and the Arkansas Court of Appeals.
In recent years campaigns for the Arkansas Supreme Court have left many of us feeling disillusioned and disheartened, regardless of whether our favored candidate won or lost. Rank partisan politics, undue influence from special interest groups and the injection of vast amounts of money into Supreme Court campaigns from both known and unknown sources are harming our state’s judicial system by eroding the respect, confidence and trust of the citizens of Arkansas in our state’s highest court.
While most people firmly and correctly believe our circuit and district judges should continue to be chosen by the voters in the counties where they serve, Arkansas needs to establish and implement a system of merit-selection to choose who will serve on our state’s appellate courts. To do so will require that the people of this state amend the Arkansas Constitution and it’s time for our Legislature to adopt and refer such an amendment to the voters of Arkansas.
Judicial independence is vitally important if we want our courts to properly serve the public and if we want litigants to feel like they like they got a fair shake. Courts should not be subject to improper influence from private or partisan political interests. Given the trend in recent Supreme Court elections in Arkansas and elsewhere, many people now have justifiable reason to believe judicial independence is being compromised, making our appellate court judges less likely to base decisions on the law, the facts and one’s conscience and more likely they will render decisions that serve political ends. That’s not the kind of justice system our Founders had in mind.
What should we expect from any judge? Canon 1 of the Arkansas Code of Judicial Conduct provides the answer: “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Present-day campaigns for appellate judgeships make it difficult for any judge, no matter how honorable they are or how hard they try, to fulfill these expectations.
What qualities do we want in our appellate judges? We want people of high integrity with meaningful experience in the law who will work hard. We want people with a history of respect and civility toward others. We want people with legal-intellectual ability who are capable of engaging in vigorous, yet measured, debate who have no reason to feel beholden to donors and special interests and who will never let political considerations influence their decision in any given case. We want people who have the fortitude to reach what they believe to be the right decision regardless of how unpopular it might be with the body-politic. Moreover, we need appellate judges who can think deeply and write clearly, who are inherently fair and who understand the importance of stability and consistency from our highest courts.
These are the standards and attributes which should count when selecting the members of our appellate courts. Selection should not be based on who is the best campaigner, who can raise the most money from lawyers and special interests or who benefits from misleading and overthe-top attack ads against their opponent financed by “dark money” from outside Arkansas which has been contributed by anonymous donors. The non-transparency of unlimited dark money contributions and how that money is used is patently unfair to the candidate targeted plus it unfairly taints the candidate who is the intended beneficiary who is powerless to stop it. All of this demeans and devalues the judicial electoral process, causing real and palpable damage to our judiciary.
There are many talented and smart lawyers and lower-court judges throughout our state who have the right stuff to be an exemplary appellate-court judge but who are understandably unwilling to subject themselves and their families to the silliness and indignities of modern-day electoral politics one must now encounter and endure as a candidate in an election for these judicial offices. If we want to ensure we have solid and the most well-qualified judges on the highest courts in Arkansas, then the best way to achieve that is through a system of merit-selection and gubernatorial appointment.
Merit-selection won’t be a perfect solution to the problems currently associated with electing appellate-court judges nor will it entirely eliminate political influence, but it would enhance our judiciary and better serve the interests of justice than the election system we have now. Our state should embrace this change.
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Woody Bassett is a Fayetteville attorney.