The Arkansas Bar Association's House of Delegates moved the state closer Friday to a nobly challenging undertaking.
It's one by which we would ask the voters to be smart enough to accept the premise that they aren't informed enough to vote for state Supreme Court justices.
The Bar voted to embrace its task force's recommendation that the state switch to a system establishing a "merit selection" nominating commission to screen Supreme Court prospects and recommend three names to the governor, who'd pick only from those three.
It also embraced ethics reforms for all the other judgeships that would remain elected. Those judges could no longer accept gifts or seek or use political-group endorsements or pretend they didn't know their donors. They'd have to disqualify themselves from cases on account of conflicts or face special appeals of their refusals.
The Bar's appointment-method recommendation hinges on the state Legislature's agreement next year to refer the proposal or one like it to the voters as a constitutional amendment.
The ethics changes hinge on the currently elected state Supreme Court, which oversees professional committees that must study and recommend such things.
Incoming Chief Justice Dan Kemp advocated for some of the rule changes and moderated on Friday morning a panel discussion on the proposed reforms. He invited me to participate in the panel to talk about the media view of disclosure issues. But media outlets are so vast and fractured in the digital social-media age that they hold no prevailing singular view of anything.
Or at least that was my excuse for talking instead and inevitably about the politics of it all, while avoiding any personal broadsides on any members of the current state Supreme Court. I wasn't going to do that even before the word got slipped to me that the Bar leadership was worried that I'd blast this justice or that--on the stalling in the gay marriage case, or on the dominance of certain class-action-lawyer cabals in Supreme Court campaign finance, or any of a half-dozen other transgressions.
It simply wouldn't be appropriate to go before the Bar Association and open up personally on the state Supreme Court. You do that kind of thing in the paper or to a different audience.
My point Friday was simple: We are naturally averse to submitting judges to raw electoral politics. We know they ought to be above it. We have barred them from directly seeking contributions. We have barred them from discussing issues for fear of prejudicing cases.
Even the very U.S. Supreme Court that gave us the anything-goes financing of "dark money" under Citizens United told Florida that judgeship elections were different and that the state could regulate those as it pleased in service to judicial integrity.
Gov. Asa Hutchinson came in to speak immediately after the panel discussion and added his endorsement, unveiled last year, of switching from elections to merit selection of Supreme Court justices.
That afternoon, the Bar's House of Delegates voted 40-to-18 in favor of the proposal and directed that the Bar draw up a proposed constitutional amendment for the Legislature's consideration. The tricky issues, yet to be addressed, will be the makeup and process of the nominating commission and whether to appoint these Supreme Court justices to single and lengthy terms to which they would stand for up-or-down retention by voters.
I'd been writing in favor of that voter-retention notion, the so-called Missouri Plan, but I've changed my mind. Dark money got lathered in Iowa to take out three judges facing up-or-down retention who had advanced the right of same-sex marriage. I fear we need to take the money and the people out of the process altogether--because, as the nation's founders knew, the pursuit of justice under the law must be removed from the direct voter control applied to the two other branches of government.
A judge does not represent constituents who elect him. His constituents are law and justice. He represents the people only in that he is supposed to provide the respected legal order--the rule of law--that civilized people require.
"Dark money" has flowed in our recent Supreme Court elections in unlimited amounts from undisclosed and presumably out-of-state special interests to launch unaccountable and sometimes fraudulent attacks. And that's what has prompted the state legal association to take a chance on these reform ideas.
So why not fix the "dark money," under the Florida precedent, and keep electing the Supreme Court justices?
My answer to that on the panel was that our aversion to submitting judges to raw electoral politics long preceded Citizens United. Well-lit money, of the kind pooled by class-action cabals or spread among political-action committees by a nursing home magnate, can be as egregious as "dark money."
So let's give the voters of the state a chance to show discretion and valor. They've surprised us before.
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 firstname.lastname@example.org. Read his @johnbrummett Twitter feed.
Editorial on 06/21/2016
Print Headline: One more step forward