Our View

Our View

Is state judicial selection process in need of an adjustment?

One of the big selling points proponents of ending the election of Arkansas’ Supreme Court justices centers around limiting the influence of campaign contributions and special interests. For example, two of the biggest donor groups to the justices’ own election campaigns are lawyers and nursing home owners. From election years dating back to 2004 through 2016 these two donor groups contributed nearly $2 million to the campaigns of six justices, according to figures compiled by the Arkansas Democrat Gazette.

The fact is that there are opinions all over the place.

Even Gov. Asa Hutchinson said he supports ending the election of appellate court justices.

Let it be known that Arkansas is one of 22 states that elects judges to its highest court, according to the National Center for State Courts. Judges are appointed in 26 states, 16 of which have retention elections.

Virginia and South Carolina select judges by a vote of the Legislature.

The latest proposal floating around is known as merit selection. One proposal by the Arkansas Bar Association would set up a panel composed mostly of bar association members to make recommendations to the governor.

The concern about this plan is that it would give entirely too much influence to the group.

Bear in mind, all this talk about ending judicial elections, at least for appellate court seats, began this year after out-of-state groups spent nearly $1 million on negative ads in two Supreme Court races. It must also be pointed out that changing the state’s judicial selection process would require amending the Arkansas Constitution through a popular vote, which means that promoters will have to convince the common folks, the non-lawyers and the non-politicians that taking the selection process away from them is a good thing.

Even supporters and promoters of this merit selection agree that there is no question that politics is going to be a problem, and the challenge will be finding the best way to minimize politics over the judicial selection process.

A perfect example of this is prevalent in how our U.S. Supreme Court justices are selected. Here we have an upcoming presidential election that indirectly involves who will select the late Justice Antonin Scalia, who unexpectedly passed away Feb. 13.

Scalia, a conservative, was appointed to the court by former President Ronald Reagan in 1986.

Conservatives and Republicans fear that if Hillary Clinton is elected president in November she will select a liberal judge to fill the vacant slot creating a court with a highly liberal agenda on such issues as gun rights, freedom of speech and abortion.

Under the draft proposed for Arkansas there would be a nine-member commission to recommend justices to the governor. The commission would consist of five members appointed by the bar association, two by the governor and one each by the House speaker and Senate president pro tempore. The commission would recommend three names from which the governor could chose to make an appointment.

Now then, this selection and appointment process can be viewed as controlled by a bunch of lawyers, the political party in control of the governor’s office as well as political parties in control of the House and Senate.

Proponents of this process say the voters will still have a voice in that there will be what they call retention elections where voters will have a chance to vote on whether they want to retain a particular justice.

But, critics say that retention elections usually spark little voter interest in that the justices up for retention consideration are of no or little interest. That lack of voter enthusiasm results in little or no change.

There is an attitude of political viability here knowing that people in Arkansas want their election rights.