Officials split on judicial elections

Governor picks in ‘Missouri plan’

Instead of having Arkansas voters pick new Supreme Court judges, Democratic Attorney General Dustin McDaniel wants the decision to be made by the governor with the help of a non-partisan committee.

McDaniel, who leaves office in January, announced his support for the “Missouri plan” earlier this month, but others have expressed reservations. Democratic attorney general candidate Nate Steel, who worked on a 2013 proposal to implement the Missouri plan for Arkansas, says he wouldn’t support “any immediate change to the election process.”

Republican attorney general candidate Leslie Rutledge says the Missouri plan is a bad idea.

A spokesman for Democratic Gov. Mike Beebe said the governor wants to keep the current system.

“The governor says he trusts the voters, and is fine with keeping the current judicial voting process,” spokesman Matt DeCample said in an email.

The Missouri plan centers on a committee that takes applications for judicial seats, evaluates the candidates based on their merits and makes recommendations to the governor, who makes the appointments. The judges are subject to retention elections, when they are on the ballot without an opponent. Voters decide whether to retain them or replace them.

Arkansas is one of 22 states where judges are elected to serve on its highest court. Two dozen other states use a system such as the one described by McDaniel, while the rest use a variety of other selection methods, according to the Washington, D.C.-based Justice at Stake, which tracks selection methods and favors the Missouri plan.

McDaniel’s comments came after the attorneys in a lawsuit challenging the state’s ban on same-sex marriages asked the justices to recuse from the case if they planned to seek re-election in the future. The attorneys argued that a resolution passed by the Arkansas Legislative Council last month and recall and impeachment threats in response to Pulaski County Circuit Judge Chris Piazza’s ruling were “intimidation tactics intended to sway this court’s ultimate decision in this case.”

The attorneys said the resolution “create[s] an appearance that outside influences could have an impact on those sitting justices who expect to seek [re-]election” and that they “respectfully request that any justice who plans to run for reelection or election to a different position on the court in future years to consider whether recusal would best facilitate the public perception of an independent judiciary.”

In response to the motion, McDaniel said in a statement that he has “come to believe that it is a mistake to elect our Supreme Court justices.”

“However, so long as we have our current system, it is a nonstarter to file recusal motions simply because justices must hear controversial cases and then stand for election, as that is precisely what is contemplated in our constitution,” McDaniel said.

McDaniel said his position on Supreme Court elections had changed “over time, but [I] have never articulated it publicly before now.”

Robert Brown, who served on the Arkansas Supreme Court from 1991 until his retirement in 2012, led a task force that examined judicial elections and suggested several changes in the state. But he said he does not support adopting a merit selection system.

Brown, who is now in private practice, said justices have to make difficult decisions in cases all the time. He said that when he served on the court, the panel had controversial decisions regarding school funding, the death penalty and cultural issues, such as whether to allow gay people to adopt children.

Brown said he didn’t summon substitutes to handle the most contentious issues; deciding tough cases is part of the job.

“I think to say that this is going to have political consequences and [will affect a judge’s decision] … I just don’t think that’s the case,” Brown said.

Brown said the current process of electing judges is the most appropriate for judicial selection. Under an appointment system, “you don’t know where the governor might be coming from politically or where the committee might be coming from.” He said it also appeared other states were “reluctant” to adopt the system, since no state has made the switch in years.

Arkansans have taken steps to de-emphasize politics — at least the partisan kind — in its Supreme Court elections.

Amendment 80 to the Arkansas Constitution, approved by voters in 2000, made judicial elections nonpartisan. (Previously, candidates for the high court ran as Democrats or Republicans.)

The state’s Code of Judicial Conduct also prohibits campaign activity “inconsistent with the independence, integrity or impartiality of the judiciary.”

According Justice at Stake, the last state to adopt a merit selection system was Rhode Island in 1994.

Bert Brandenburg, the executive director of Justice at Stake, said the group promotes the merit selection system because it reduces the effect of “big money” in judicial races and frees up judges from fundraising. He said the system instead focuses on a judge’s qualifications.

“It’s designed to work like a rigorous job interview,” Brandenburg said.

The group also played down the politics involved in a merit selection system.

Carolyn Bobb, a spokesman for Justice at Stake, said in an email that the group “believes that the political motivations of a governor would be quite clear to voters.”

Steel, the Democratic attorney general candidate, as a House member worked on a proposed constitutional amendment during the 2013 legislative session that sought to implement the Missouri Plan in Arkansas. House Joint Resolution 1005, sponsored by Rep. Matthew Shepherd, R-El Dorado, would have created a 15-member judicial nominating committee that would have picked the finalists to fill Supreme Court vacancies. Supreme Court justices would have faced retention elections once every eight years.

Steel said the measure “died in committee and even it was not without its flaws.”

“I [have] yet to find a perfect solution, so I would not support any immediate change to the election process,” Steel said.

Steel said in an interview that he had concerns about the measure from the beginning, namely the possibility of injecting more partisanship into the process by giving a politician the final say on the appointments. He said he wanted the bill to get to committee to spur a discussion on what would be the best judicial selection process for the state.

Rutledge, Steel’s Republican opponent, said in a statement that she supports the current selection method.

“Arkansas is always best served when power and control remain in the hands of its citizens,” Rutledge said.