Essential courtesy

The Arkansas Bar Association's Task Force on Maintaining a Fair and Impartial Judiciary asserts by its name that the state already has a fair and impartial judiciary.

In its potentially important report to be presented mid-month to the state Bar convention, the task force includes a mildly amusing disclaimer.

It explains that, by proposing that we stop electing state Supreme Court justices and impose new ethical and procedural restrictions on all judges, it is in no way suggesting that there is anything substandard or awry about the currently elected Supreme Court or the rest of the state and local judiciary.

The task force merely seeks, the report says, to take what is fine and make it finer, and to be part of a conversation that, of course, the perfectly swell current state Supreme Court should and must dominate.

You see, the task force's recommendation to stop electing and start merit-selecting our Supreme Court justices threatens to overpower the meaty substance of the rest of the report. That meaty substance calls for changes in codes of judicial and personal conduct and court rules and procedures that, if adopted by the Bar on June 17, presumably would be referred to actual policymaking committees working under the auspices of the unfortunate Supreme Court we have now.

Unfortunate--that was my word, not the task force's.

The task force is saying the problem is "dark money" that has infested our recent Supreme Court elections and eroded public trust, not the quality of the court.

It is the essentially courteous thing to say.

But in this space courtesy is not required nor much applied.

The fact is that voters have made bad decisions in recent Supreme Court races--Courtney Henry, later Goodson, over John Fogleman in 2010, Karen Baker over Tim Fox in 2010, Jo Hart over Raymond Abramson in 2012, Robin Wynne over Tim Cullen in 2014 and Shawn Womack over Clark Mason this year.

The only race the voters got right was the big one March 1, Dan Kemp over the previously referenced Courtney Henry Goodson for chief justice, and that happened only because of the unique and fortuitous overlap of outside dark money's special-interest preference and the better choice.

In fact, Courtney Goodson is largely the personification of the problems that the task force seeks to address with new canons and rules.

That's my interpretation and declaration, not the task force's.

There is a proposal to amend rules and procedures to provide that a Supreme Court justice could not indefinitely delay an otherwise-ready ruling by stalling in commenting on a draft of the majority opinion or by stalling in writing a dissenting opinion.

Both of those things apparently happened in the gay-marriage case. Reportedly, tactical foot-dragging on the application of justice in that case permitted Goodson to be unburdened by a politically incendiary cultural issue that could have harmed her in the chief justiceship race, which, it turned out, she deservedly lost anyway.

The task force also proposes an absolute ban on gifts from non-family members to judges except in cases of established friendships and only then on special occasions like birthdays, wedding and anniversaries--and then only with gifts commensurate with the occasion and the pre-existing friendship. You couldn't suddenly declare yourself a friend and give a judge a Porsche for his birthday.

This new rule likely would have prohibited class-action dynamo John Goodson from lathering expensive gifts in 21010 on Courtney Henry, at the time an appeals court judge running for and then winning and awaiting a Supreme Court seat. She also was waiting for part of that year for a divorce decree that would permit her to marry the class-action dynamo and gift-giver.

By this proposed new rule, the class-action dynamo would have had to wait until he was actually wed to the judge before lavishing gifts upon her.

Then there is the task force's proposal to strengthen a current rule and make clear that a judgeship candidate could not seek or accept or use an endorsement from a "political organization" that lobbied or advocated on public issues or in elections.

That, too, is mainly a Courtney deal. She sought, received and used in the recent campaign an endorsement from the National Rifle Association. Doing so prejudiced any subsequent decision she might have made as a judge in a case having to do with a gun issue.

To be fair, the task force offers other substantive proposals on rules and procedures that are not Goodson-centric.

One would end the nonsense of judges supposedly not knowing the identities of persons giving them campaign donations, and thus require judges to recuse in cases posing conflicts based on donors.

All of these worthy proposals--led by the merit selection of Supreme Court justices--are subject to uncertain ratification by the Bar's house of delegates.

After that, they or the issues they raise would be subject to consideration by professional committees working under a state Supreme Court that the task force says is swell, but which isn't.

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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 06/09/2016

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