If you voted in the March 1 elections, you encountered at least a couple of judicial races on your ballot. In addition to choosing between two very capable candidates for a re-engineered district court seat, many of us were also faced with the tasks of deciding who would serve as the state’s newest Associate Justice and Chief Justice on the Arkansas Supreme 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 races for Chief Justice and Associate Justice broke fundraising and campaign spending records. These contests were also particularly negative in tone as outside groups spent hundreds of thousands of dollars broadcasting advertisements against Associate Justice Goodson, candidate for Chief Justice, and Little Rock Attorney Clark Mason, candidate for Associate Justice—both of whom lost. The groups 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. 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. Last year, Representative Matthew Shepherd, a Republican from El Dorado, 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, last summer, still months before this spring’s negative dark money-funded advertisements and the newspaper stories on the topic of money and the court, 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. Twenty-nine 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 Shephard and Governor Hutchinson? Only time will tell. 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 (see Iowa—the Hawkeye state had a series of heated retention elections after its Supreme Court struck down the state’s gay marriage ban). However, the issue is as politically ripe as it has ever been and policymaking 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.
John C. Davis is an assistant professor of political science at the University of Arkansas at Monticello and writes a regular column for Southeast Arkansas media outlets.