Governor sees partisan tinge in high court race; outside ads aided Webb, he observes

Gov. Asa Hutchinson is shown in this file photo.
Gov. Asa Hutchinson is shown in this file photo.

Billboard ads purchased by local Republicans called Barbara Webb the "conservative" pick for the nonpartisan Arkansas Supreme Court.

Another GOP group ran TV ads saying Webb would stand up to the "out-of-control left."

In the aftermath of Webb's success in Tuesday's election, Gov. Asa Hutchinson, a Republican, said future judicial candidates will likely adapt similar tactics.

"Obviously the independent expenditures helped define Barbara in ways she could not do herself," Hutchinson said at a meeting of the Political Animals Club at the Governor's Mansion on Wednesday. "I think that is something that will be studied."

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Webb, an administrative law judge who is married to the chairman of the Republican Party of Arkansas, defeated Pulaski County Circuit Judge Morgan "Chip" Welch by about 7 percentage points in Tuesday's election. They were seeking Position 4 on the Supreme Court.

The Republican State Leadership Committee, based in Washington, D.C., spent at least $250,000 supporting Webb in the final days of the race, though the total could be more once the group files its postelection report with the Arkansas secretary of state's office.

The committee and another out-of-state conservative group, the Judicial Crisis Network, have together spent millions on Arkansas' nonpartisan races in recent cycles, to mixed success.

The groups ran attack ads against two Supreme Court candidates in 2016; both targets were defeated.

Two years ago, the Republican State Leadership Committee again ran ads personally attacking two judicial candidates running for reelection -- Court of Appeals Judge Bart Virden and Supreme Court Justice Courtney Hudson -- but both went on to win in their races.

Hutchinson, a past critic of outside spending in judicial races, said he observed that the outside ads in this year's election took a less personal tone.

The ads run this year by the Republican State Leadership Committee supporting Webb featured the warning about the "out-of-control left," along with images of Hillary Clinton, U.S. Rep Alexandria Ocasio-Cortez of New York and House Speaker Nancy Pelosi -- the latter ripping up a speech after President Donald Trump's State of Union address -- but it did not address Welch by name.

"They were colorful, but not negative," the governor said of the group's ads. "They weren't attack ads. I think that's a pattern that says, 'Let's concentrate on distinguishing the candidate, as to who they are, their philosophy,' versus just bashing somebody else."

As ads run by partisan groups have proliferated in recent judicial elections, Democrats and legal organizations such as the Arkansas Bar Association have argued, with little success, to clamp down on such expenditures, known as "dark money" when the groups do not disclose their donors. (The Republican State Leadership Committee discloses its donor base.)

Meanwhile, some Republicans in the Legislature have floated the idea of stripping the nonpartisan label from judicial elections altogether, though Hutchinson said Wednesday he disagreed with the idea.

Charles "Ed" Clawson, a circuit judge from Faulkner County who is president of the Arkansas Judicial Council, said it was inappropriate for outside groups to try to tie a judicial candidate to a political party.

"These elections are supposed to be nonpartisan, and I wish they would be kept that way," Clawson said.

Nonpartisan judicial candidates are barred from coordinating with groups that spend money on their behalf. The state's judicial canons also bar candidates from identifying themselves with a specific political party, touting the endorsement of party officials, or stating how they may rule on a case that could appear before them.

Judicial candidates are permitted, however, to use broad terms such as "conservative" or "liberal" to describe their philosophies.

In addition, as Hutchinson noted to the Political Animals Club on Wednesday, judicial candidates can find "creative" ways to better define their campaigns.

For example, while Hutchinson did not endorse either Webb or Welch -- and neither candidate could have promoted such an endorsement without violating judicial canons -- Webb's campaign mailed cards to voters that featured a quote from Hutchinson praising Webb upon appointing her to fill a judicial vacancy in 2017.

Jay Barth, a professor of political science at Hendrix College who has written about Arkansas' nonpartisan judicial elections, said he agreed with the governor's assessment.

"We know that Republicans and conservatives have a sharp advantage in this political environment in Arkansas," Barth said. "Therefore, there's going to be a desire on the part of candidates to use that when they can."

Webb, who attended the Political Animals luncheon at which Hutchinson spoke, told reporters afterward that she had "great respect for his opinions," but she declined to speculate on races besides her own.

"Clearly the rules of ethics allow for a judicial candidate to speak to their judicial philosophy," Webb said. "It's very appropriate for a candidate to say if they are a conservative, and we did."

Welch, who had criticized Webb's ties to the Republican Party from early on in the race, maintained that he had run his campaign in a nonpartisan nature, despite Webb's later criticism of his past donations to Democrats. Told of the governor's comments, Welch said he had seen a change in message from past campaigns, such as those run against Hudson.

"They clearly adapted from Courtney's race," Welch said, while adding that he still did not find the messages to be positive.

"The Alexandria Ocasio-Cortez and Nancy Pelosi references -- I'm not sure what they had to do with this race," he said.

The next elections for the Supreme Court will be held in 2022, when Justices Rhonda Wood and Robin Wynne will be up for reelection.

SundayMonday on 03/08/2020