Still want to elect judges?

Hand with ballot and boxBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

There are times when the work of journalists doesn’t really change much, and there are times when it might help. This might be one of those times when it helps.

I’m referring to the Arkansas Democrat-Gazette’s recent series detailing how six class action law firms, all but one based out of state, have contributed $296,000 in campaign funds to current Arkansas Supreme Court justices, and then argued cases in front of those justices, winning more than they lose. A partner in the one Arkansas firm, John Goodson, is married to Associate Justice Courtney Goodson, who recuses from cases involving his firm.

Justices must raise money like any other candidate, and most probably don’t like it and do the best they can within an imperfect system. Still the series has called into question whether they are being unduly influenced by those donations. 

The larger question is whether judges should be elected at all.

Americans have come to accept that legislators and executive branch officials raise money from interest groups and then give them something in return. We don’t like it, but we apparently can live with it.

But the idea of the judicial branch potentially being for sale is a little harder to accept. Someday we might be the one sitting in a courtroom facing an opponent who gave that judge a big donation. And now, thanks to the U.S. Supreme Court, judges can receive even more of those helpful dollars, and from more sources that can remain as anonymous as they want to be.

Electing judicial candidates has always been awkward because it’s the branch that’s supposed to worry about the law rather than popular opinion. Traditionally, candidates have refrained from describing their specific views in order to maintain their impartiality when they hear a case. That practice made it hard for voters to make an informed choice, but at least it lessened the politicization of the courts.

But with more at stake and more dollars involved, the justice system is becoming more political. For example, a 2014 Supreme Court race involved an ugly and misleading ad funded by an outside group against the losing candidate who had once done his duty as a court-appointed attorney for a sex offender. Another example occurred last year, when the Supreme Court stalled in making a potentially unpopular ruling on the state’s gay marriage law until the U.S. Supreme Court bailed it out and made the decision for it.

The issue is especially timely because, in less than a month, Arkansas voters will elect two Supreme Court justices. For chief justice, Goodson faces Circuit Judge Dan Kemp of Mountain View. For associate justice position 5, Circuit Judge Shawn Womack of Mountain Home faces attorney Clark Mason of Little Rock.

These two races together are arguably as important to Arkansans as the 2014 governor’s race. But in that race, most voters probably had a pretty good idea who they were voting for. Enough dollars are flowing into judicial candidates’ races to call their impartiality into question, but not enough to really introduce the candidates to the voters.

What should be done about all this? The Arkansas Bar Association has appointed a task force to study the issue. A group of legal types, including two retired Supreme Court justices, has created a privately funded effort to try to correct misleading advertisements and to provide information about candidates through a website, www.arkansasjudges.org, that doesn’t offer much yet. Gov. Asa Hutchinson has questioned if appellate judges – the Arkansas Supreme Court and the Court of Appeals – should be appointed, as they are at the national level.

That’s an imperfect solution, too, because it could give the governor a lot of power. However, there are ways to make it less imperfect. In Missouri, the governor appoints from a list of three candidates provided by a judicial commission, and then, at the next election, the voters decide if the judge should be retained. If not, which has only happened twice, then the process begins anew.

State Rep. Matthew Shepherd, R-El Dorado, introduced a constitutional amendment in the 2015 legislative session to create a similar system in Arkansas, but it didn’t make it. Maybe 2017 will be different.

For now, we’ll still elect our Supreme Court justices the same way we do now – two of them, in fact, on March 1. Know which ones you want to vote for yet?

2 thoughts on “Still want to elect judges?

  1. Let’s face it: we now live in a plutocracy, especially after the Citizens United decision, which was rendered by Supreme Court members who are very cozy with Big Money. Americans’ love affair with capitalism has made us the the most unequal society on the planet. The gap between the super rich and the rest of us is growing larger every day. No matter how we handle the judiciary, Big Money will have its way.

  2. Hi, Sandy. I can’t argue with a lot of that, except for the end. You know, the big contributing firms won more than they lost, but they didn’t win all of them. We can’t make the system perfect, but we can make it better.

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