Is It Time To Rethink Judicial Selection In Arkansas?

By John C. Davis

Over the course of the last campaign season, Arkansans witnessed a race with very negative ads, funded largely by out of state groups, making accusations of unethical behavior. Newspapers columns and Letters to the Editor were filed discussing the bitterness of this political contest. The stakes were high as voters would determine who would serve in the important state elected position. In the race, we saw an incumbent—seen by many to be a clear early front-runner with considerable statewide campaign experienceAR Court Seal —facing a bold challenger with strong support from like-minded, well-funded, ideological groups and voters alike. You might ask yourself, “Which race is he referencing? The race for Governor? One of the races for U.S. House of Representatives? Or maybe the tight three-way race for Mayor of our state’s capital city?”

Nope. I am referring to yet another ugly political battle for a seat on our state’s highest court.

Voters in the Natural State have elected judges for a very long time. Since 2000, when voters approved a constitutional amendment to remove partisanship from judicial races, these electoral contests have been nonpartisan. Arkansans generally like playing an active role in deciding who will fill these important positions. However, recent events lead me to expect more discussion from lawmakers, and voters alike, concerning whether or not reforms are needed to maintain the public’s esteem for the court.

This year’s judicial race, for one of the Court’s Associate Justice seats pitted an incumbent member of the bench, Courtney Goodson against Department of Human Services Chief Counsel David Sterling. The race was actually a run-off from last spring’s primary and non-partisan judicial election. The contest was particularly negative in tone as at least one prominent outside group, The Judicial Crisis Network, spent well over a million dollars broadcasting advertisements against Associate Justice Goodson. The group(s) that provided the financial backing for these ads are often referred to as “dark money” organizations because such entities do not have to disclose their donors. In all fairness, another characteristic of these groups is that they cannot coordinate with a campaign, so these ads were not directly coming from David Sterling or his campaign team. While negative campaigning is not new to Arkansas politics, we had grown accustomed to relatively civil races for the judicial positions. Only recently has the negativity that so often plagues other electoral contests founds its way into these particular campaigns. Regardless of who you favored for these races, most of us see the need for our judicial system to operate above the fray of petty politics and close observers of the court often acknowledge the importance and value of this governmental branch maintaining such a public perception.

Out of concern for the possibility of a tarnished perception brought onto the court by the increased role of money and politics, some have proposed different methods for selecting our state’s highest court’s judges. In previous meetings of the Arkansas General Assembly, legislation to alter judicial selection has been authored and submitted but failed to garner significant support. A few years ago, Representative Matthew Shepherd, a Republican from El Dorado who will serve as the Speaker of the House for the 2019-2020 Arkansas General Assembly, submitted legislation that would have begun the process of shifting from popular election of Supreme Court justice positions to an alternative form of judicial selection.  More recently, Governor Asa Hutchinson expressed support for a system of judicial selection similar to what has become commonly referred to as the “Missouri Plan.”  Under this method, a vacancy on the court is filled by the governor selecting a name from a list created by a commission. At the end of a trial period, the judge goes before the public in the form of a retention election—no opponent.

According to the American Bar Association, seven states elect their judges to their state’s highest court by partisan election. Arkansas, along with 13 other states, elects their highest court’s justices in nonpartisan elections. 29 states have some version of an appointment process. Of those 29, 17 of them hold retention elections after the initial appointment.

Will this most recent election cycle’s events lead to more support for alternatives championed by Representative Shepherd and Governor Hutchinson? Only time will tell. It is my opinion that prospects for such drastic change to judicial selection in Arkansas are doubtful. In all fairness, even a merit-based system such as the “Missouri Plan” would likely do little to stop the meddling of outside groups or even negative campaign tactics.  However, the issue is as politically ripe as it has ever been and policy making relies heavily on windows of opportunity. The public mudslinging and “dark money” we have come to expect in practically all electoral races, except judicial contests, has finally reached the state’s judiciary. Perhaps it is time we rethink judicial selection in Arkansas.

Note: An earlier version of this post has appeared in southeast Arkansas media outlets