Both of the candidates seeking to unseat Justice Courtney Goodson for a spot on the Arkansas Supreme Court say they'll work to stamp out "judicial advocacy" on the high court -- even though neither cited examples of such activism at work.
Such allegations, which attempt to paint officially nonpartisan judges as overtly political, are not new in Arkansas.
The stringent rules set in place to keep politics -- or prejudicial opinions -- out of court races tend to also mute candidates' criticisms over a specific court action or ruling.
Still, the challengers, Arkansas Court of Appeals Judge Kenneth Hixson and top Department of Human Services attorney David Sterling, say complaints about "activist" judges are a common refrain from voters.
"It surprises me that ordinary citizens are attuned to pick up that kind of issue," said Hixson, who clarified that no voter had raised issues over a specific case with him.
"Honestly, I think that people are looking for a change," Sterling said, before adding, "I have not heard specific criticisms of certain cases or specific judges."
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Goodson, one of the two longest-serving justices currently on the high court, said criticism of her record or the court's decisions is not what she's been hearing on the campaign trail, where she has made a point through social media of noting that she has attended Republican and Democratic events.
"I have not heard that from Arkansans, I have not heard that from anyone but my opponents," Goodson said in a telephone interview last month. "It seems that the term 'too political' is used in a convenient way as code for, 'I'm not happy that I didn't get my way. I'm not happy because I lost my case.'"
[FULL LIST: Statewide contested races in May 22 primary]
The election for the court seat, along with other judicial races, will be held May 22. If none of the candidates earns a majority of the vote, a runoff will be held Nov. 6, the same day as the general election.
Supreme Court justices are elected to eight-year terms and are expected to earn $174,925 next year under a proposed pay increase.
Observers of the court had noted the relatively placid nature of this year's Supreme Court campaign, until television ads and mailers appeared last week. The Judicial Crisis Network, an out-of-state conservative group that has spent big money in campaigns of recent years -- including Goodson's failed 2016 bid for chief justice -- revealed last week a six-figure ad purchase attacking Goodson. Also, the Republican State Leadership Committee announced its ad-purchase supporting Sterling.
The justice immediately responded by condemning the Judicial Crisis Network's campaign, calling it "an effort to buy votes," according to The Associated Press. The Judicial Crisis Network, which is not affiliated with a campaign, does not disclose its donors.
The lines of attack against Goodson this year are similar to those used against her in 2016: money spent by trial lawyers on her campaigns and expensive gifts she reported receiving from her husband, John Goodson, and a business partner, according to filings with the Federal Communications Commission.
Hixson and Sterling denied having anything to do with the Judicial Crisis Network ads, and said they are preparing their own television spots. Goodson has said she will be more prepared to respond to attack ads against her during this campaign cycle.
As for her own pitch to remain on the court, Goodson told an assembly of attorneys recently in Little Rock that it was "not a time to change a member of the court."
Speaking to a reporter later that day, she referred to the 962 cases disposed of by the court in 2017, as well as efforts by her and her fellow justices to handle the avalanche of filings and pleas associated with the state's two-week rush to execute eight men on death row last year. (Four of the executions were stayed, three by the Arkansas Supreme Court.)
Diane Robinson, the director of the Office of Research and Justice Statistics for the Arkansas judiciary, confirmed Goodson's numbers. The court more than doubled the number of cases it cleared last year, when compared with the two previous years, Robinson said, as part of a "concerted effort" to clean up old files.
"That is all objective evidence that the Arkansas Supreme Court is a well-oiled machine," Goodson said. "With all that good work being done, continuing that stability, continuing that good work, only makes sense to me."
Her two challengers each say they'll take a new "judicial philosophy," or their own way of looking at cases, to the court.
Sterling, who ran unsuccessfully in the Republican primary for attorney general four years ago, said his is a philosophy of "judicial conservatism."
"I'm also a constitutionalist, and originalist. I believe the Constitution should be interpreted according to the original intent of the people that drafted it," Sterling said.
Hixson, the oldest candidate in the race, is running a campaign focused on his experience, even though he has served fewer years as an elected judge. Touting his 30 years as a practicing attorney, Hixson said he has ample trial experience and has worked on diverse caseloads.
"When I think I'm right, I'm not afraid to say that, and if I'm the only one who sees it that way, so be it," he said in an interview. "If [other judges on the court] can convince me I'm wrong, I'm going to follow the law. But again, when the law is gray, you bring your experience, and what you bring to the table is important."
In response to a survey by the Arkansas Family Council asking which U.S. Supreme Court justice most reflected its judicial philosophy, all three candidates pointed to justices who are considered to represent the court's conservative side. Goodson said she was most like Chief Justice John Roberts, Hixson said he aligned with the late Justice Antonin Scalia, and Sterling chose the newest member of the high court, Justice Neil Gorsuch.
As for the accusations of "activism" on the court, Joshua Silverstein, a law professor at the University of Arkansas at Little Rock's William H. Bowen School of Law, said the term was first used in a non-derogatory way by political scientists and has lost much of its usefulness after being adopted by political campaigns.
"I have not seen any indication that the Arkansas Supreme Court is any more influenced by politics than courts anywhere else," Silverstein said. "If someone is going to accuse the court of being activist, I want to see specific examples where they believe that's the case."
Still, Silverstein said, charged phrases such as "judicial activism" can sway voters and casual observers of the court. Lawyers who are more familiar with judges and justices often already know which candidates closely align with their view of the law, he said.
Two administrative aspects of the court that are of interest mostly to attorneys with cases before the court have become issues in the campaign: oral arguments and the high court's abstraction requirement.
In April, the Arkansas Democrat-Gazette reported that the court was holding fewer oral arguments over the past two years than it had in previous recent years. Asked about the decline, Goodson said she enjoys holding in-person oral arguments but the process can cause delays, and she makes the decisions on a case-by-case basis. Hixson was more generous saying he had never heard an oral argument that was frivolous, while Sterling said the practice can make court costs more expensive for litigants.
The other issue, abstraction, has to do with the court's requirement that attorneys with appeals before the court meticulously summarize the important portions of the original trial transcript.
Goodson and Sterling say the requirement is antiquated, and that it adds time and costs to the trial work. Sterling went further, saying he's encountered cases where opposing attorneys created overly biased abstractions.
Hixson said he finds reading abstractions helpful when reviewing cases in which there are disputed facts. Still, he said the rule could become outdated if the court moves to fully digitize the trial court records.
The Arkansas Bar Association, the state's primary professional association of lawyers, is not endorsing any candidates in the race.
SundayMonday on 05/06/2018