I see there is consideration of amending our state Constitution (as we tend to do frequently), this time to constitutionally and officially make judicial elections partisan again.
What an idea! Let’s make judges be Republican or Democrat or whatever the flavor of the year is, so we can be sure they are not impartial and come to the bench with clearly stated prejudged ideas. That will take all the guesswork out of the equation and save time, eliminating the need for all that pesky evidence, research and impartiality.
Recent judicial campaigns for election to the appellate bench in Arkansas, including my own campaign for re-election to the Arkansas Court of Appeals this past year, have caused me to re-evaluate our state’s system of selecting judges. I believe that our judicial election process is deeply flawed, maybe irretrievably broken.
First, according to the Arkansas Constitution and the Arkansas Code of Judicial Conduct, judicial elections are supposed to be nonpartisan. We are not allowed to donate to a party or any candidate. We are not allowed to be endorsed by or endorse any party or candidate. Yet we are permitted to attend functions put on by political parties.
That makes absolutely no sense.
Consider this: My position is elected from 18 counties that essentially go from Russellville to Conway and north to Missouri. During last year’s campaign, the only political gatherings of any size in those counties were sponsored by the Republican Party. I was glad for the opportunity to meet many wonderful people and worked very hard to explain why judges were not supposed to run as a Republican or Democrat.
It is important at this point to reaffirm that after I was first elected as a judge, I engaged in no political activity. I did and do take my nonpartisan position seriously.
Without any means of enforcement, we are left depending on the integrity of individual candidates and those that support them to follow the rules. Nonpartisan cannot mean it is acceptable to use code words, such as “conservative” or “traditional values,” to identify oneself as partisan. As a judge, how can we promote a violation of the spirit and intent of the Arkansas Constitution and the Arkansas Judicial Code of Conduct that we have pledged to uphold? A wink and a nod is an abhorrent example of how a judge should behave. Time after time, I have seen local party officials openly working on behalf of judicial candidates.
The second prong of the problem is the out-of-state “dark money.” In recent years, it has been more prevalent in our Supreme Court races, and for the first time in 2018, our Court of Appeals race drew between $80,000 and $100,000 from an out-of-state political action committee (with unnamed donors) for the purpose of defeating me.
The “State Republican Leadership Committee” (nonpartisan, remember?) ran television ads claiming I was “soft on crime.” Of course, the ads were inflammatory and not accurate, but a week or so before the election there was little I could do.
As we see time and again, the candidates who benefit from such false or misleading ads don’t disavow or condemn those ads. At best, they simply state they were not “involved.” If we accept the notion of “do whatever you have to do to get elected,” we had better re-think the idea that we as judges, privileged to be entrusted with the grave responsibilities we have, are somehow “better than that.”
The problems and abuses are clear; the solutions are more difficult to see. After much thought, I am now of the opinion that some sort of appointment system for our appellate courts might be the solution. Let’s face it, the electorate doesn’t know much about the Arkansas Court of Appeals. I inevitably must explain what it is and what it does. Truth be told, it’s hard to know, if you are not a lawyer, who the best candidate for appellate judge would be. Not that lawyers are more enlightened, but they are in contact with the judicial system daily.
I don’t feel it should be a regular appointment by the governor, which would be purely partisan and dependent on which party was currently in office. There are many systems in place across the country that have extensive pre-screening and qualification reviews to ensure qualified candidates seek the positions.
There would still be the thorny issues regarding the method of reappointment or retention, but the point is there are other and surely better ways to select appellate judges. As our recent judicial elections have demonstrated, relying on a sense of ethics and integrity doesn’t seem to be the answer.
Judge Bart F. Virden sits on the Arkansas Court of Appeals.
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