- Associated Press - Saturday, January 30, 2016

LITTLE ROCK, Ark. (AP) - The March judicial elections featuring two contested Supreme Court races won’t just be a referendum on the direction voters want for a court that’s been in the middle of an unusually public dispute. It could also offer a signal on whether voters even want a say anymore in picking members of the state’s highest court.

The work of outside groups in a Supreme Court race two years ago, the fallout from the court’s dispute over gay marriage and questions about the influence donors have are helping re-ignite the debate over whether justices should be elected or appointed.

Republican Gov. Asa Hutchinson weighed in last year on the issue, telling an attorneys’ group it’s time to examine merit selection for the state’s highest court.

“I have always been a consistent advocate for the popular election of judges. I still hold true to that in terms of our district and circuit judges. I believe it is time to rethink that in terms of our appellate judges,” Hutchinson told members of the Pulaski County Bar Association last April.

Hutchinson’s comments came amid an unusually public spat on the Supreme Court over its handling of a gay marriage lawsuit. The case, which was dismissed hours after the U.S. Supreme Court legalized gay marriage nationwide, was sidelined for months by a disagreement over which justices should participate in the appeal. It also came after a ballot proposal to end the popular election of justices fizzled before the state Legislature.

Those remarks plus renewed questions about donor influence could propel the issue to the top of the Legislature’s agenda next year. The Arkansas Democrat-Gazette reported in a series of recent articles that six law firms that have worked together on class-action civil cases in the state are among the biggest campaign donors to the elected justices now on the court.

The developments are encouraging signs to the lawmaker who wanted to put merit selection on this year’s ballot. Republican Rep. Matthew Shepherd says he expects to try again with his proposal to end popular election of Supreme Court justices. Shepherd’s proposal last year would have set up a 15-member commission to recommend nominees for the court, with the governor appointing justices. Under the proposal, justices would face “retention” elections when their terms end.

“There is no perfect system but I do think that when it comes to particularly my proposal and what I put forward, merit selection serves to better insulate the court from politics,” Shepherd said.

That insulation is what even supporters of popularly elected justices say the court needs. The 2014 Supreme Court race between Maumelle attorney Tim Cullen and Appeals Court Judge Robin Wynne was overshadowed by an outside group blanketing the state with ads attacking Cullen’s record. Wynne defeated Cullen.

It remains to be seen whether similar outside attacks will factor into this year’s races, which include Justice Courtney Goodson’s bid against Judge Dan Kemp for the chief justice job. But it’s a race that’s clearly not insulated from politics, with Goodson launching her bid vowing to represent “conservative values.”

Hoping to avoid a repeat of the 2014 Supreme Court race, a nonprofit backed by two former Supreme Court justices is urging judicial candidates to disavow “false” communications on their behalf by outside groups in their races. The Arkansas Judicial Campaign Conduct and Education Committee also formed a rapid response team to respond to false attacks.

Former Justice Robert Brown says he still leans toward popular election of judges. He notes that appointing justices means they’re selected behind closed doors, not in an open process. The retention elections also could open the door to single-issue campaigns focused on unpopular or controversial rulings by the court, he adds.

At the same time, Brown says changes are needed to assure the public that politics isn’t a factor in popular elections. Beyond limiting the influence of super PACs and outside groups, they include stronger rules on when justices should recuse.

“You need to have some reforms to instill confidence as far as the public in the court system,” Brown said.


Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. Follow him on Twitter at www.twitter.com/ademillo

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