Is this the way to select judges?

By Steve Brawner

In a democracy, how we select officeholders is more important than whom we elect in a single election. That being the case, it’s time to reconsider how we select judges and Supreme Court justices. It’s not been a good election cycle.

For example, last year, nursing home operator Michael Morton donated thousands of dollars through seven different political action committees to the campaign of Circuit Judge Mike Maggio, who at the same time reduced a jury verdict against one of Morton’s nursing homes from $5.2 million to $1 million. Morton has said the timing of the gifts and verdict were a coincidence, but the Arkansas Supreme Court has reassigned Maggio’s entire caseload.

Also, as reported in Sunday’s Democrat-Gazette, Morton donated $46,000 to the campaign of Supreme Court Justice Rhonda Wood, who doesn’t have an opponent. She later returned half of that. He also donated $20,000 to Judge Karen Baker, who also is running unopposed for Supreme Court. Both of these represented sizable percentages of the two candidates’ campaign hauls.

The only competitive Supreme Court race pitted Court of Appeals Judge Robin Wynne versus attorney Tim Cullen. (Tuesday is my deadline, so I don’t know who won.) In that race, a campaign ad funded by the out-of-state Law Enforcement Alliance of America made an issue of Cullen once serving as a court-appointed lawyer for a sexual predator who was appealing his sentence. In the legal brief, Cullen used the phrase “victimless crime” because the predator had been caught through a police sting operation. In typical negative campaign ad fashion, the LEAA pulled that quote out of context and painted Cullen as an ally of sexual predators and dismissive of child pornography.

The ad was not just an attack on Cullen. It was an attack on one of the most fundamental values of the American judicial system – the right to a fair trial and a vigorous defense. Wynne distanced himself from the ad, which wasn’t his, but he did not denounce it – a fact I remembered in the polling booth.

Misleading negative ads and big campaign donations are nothing new, of course, and one might argue that they are the price we pay for having a vibrant democracy and free speech. Some might say judges should go on the hot seat just like everyone else.

But the judiciary is unique among the three branches of government. While the executive and legislative branches should listen intently to popular will, the judiciary should be relatively independent of campaign-related passions. Also, the executive and legislative branches operate through collaboration, so there’s a limit to how much influence can be bought with a donation to a single candidate. Judges, however, make decisions that stand on their own. A group of four justices can change the way we live with a single decision.

Arkansas always has had an uneasy relationship with judicial elections. Judicial ethics have forbidden candidates from discussing how they would rule on cases, resulting in bland campaigns offering limited information to voters. Now that campaign dollars are flowing more freely, candidates are being placed in increasingly compromising situations. After all, unless they are independently wealthy, they must accept contributions in order to run a campaign.

Should judges be selected through an appointment process – perhaps by the governor with confirmation from the state Senate, as it’s done in Washington? Or would that simply import some of Washington’s troubles here? Maybe we should just trust the current process. Of course, the current process is also how we elect constitutional officers, and two of the seven have resigned in disgrace.

We’ll be fine regardless of whether Wynne or Cullen won on Tuesday. They’re both qualified. But in a democracy, how we select is often more important than whom we elect. It’s time for a judicious review of the process.

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