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OPINION | JOHN BRUMMETT: The nonpartisan charade

by John Brummett | June 12, 2022 at 1:39 a.m.

I will write a sentence now and invite District Judge Chris Carnahan of Conway to tell me it's wrong and that he wants it corrected.

Here is the sentence: District Judge Chris Carnahan of Conway is the Republican candidate in the nonpartisan runoff election this fall for a position on the Arkansas Supreme Court.

Let me hear from you, your honor.

What I'm doing there is commenting on the utter charade of supposedly nonpartisan judicial elections in Arkansas, which our state Constitution dictates in an amendment passed by the voters in 2000.

The principle is that true justice is a matter of fairness under the law and therefore must be divorced from partisan politics.

But the principle has not survived the practice.

National political malignancies have metastasized to the point that U.S. Supreme Court seats are now mostly legislative seats. We currently have five Republican votes and three Democratic votes on our high court, which means Republicans can rule as they wish and Democrats can rule on diddly.

The only glimmer of blind justice is that Chief Justice John Roberts sometimes goes either way or partly one way and partly the other. But that only means that Republican justices do their version of justice sometimes 5-4 rather than 6-3.

In Arkansas, where we elect judges, word usually manages to get out at the state Supreme Court level that one of the candidates is the Republican. Code words for that are "strict constructionist" and "conservative choice."

Or it's simply obvious. Carnahan formerly was executive director of the state Republican Party.

What happened notably last week was that the state Republican Party dropped the charade and came right out and said it--that Carnahan, who eked into a runoff against incumbent Justice Robin Wynne, is the endorsed Republican candidate in the laughably "nonpartisan" race.

Is it right to flout the state Constitution that way?

Please understand that the constitutional constraint is on a judgeship candidate. That candidate cannot declare himself an R or a D. The constraint does not apply to the state Republican Party, which has the right of free speech to proclaim its preference in a choice of Supreme Court candidates.

But what interests me--other than the sporting pleasure of charade patrol--is that the state code of judicial conduct says clearly that a candidate in a race for judge may not "seek, accept or use" the backing of a political organization.

Carnahan got quoted in this newspaper last week as saying he appreciated anybody's support and believed in freedom of speech for the Republican Party. As to what he might do affirmatively as a candidate with or about that endorsement, he said he'd abide by the law but otherwise not talk publicly about his plans.

I think that, under the judicial code of conduct, he is obliged to decline the endorsement publicly.

We can agree he shouldn't seek it. Presumably he didn't.

Using it affirmatively--that's a bridge to be crossed when gotten to. Anyway, Carnahan won't have to use it. The Republicans will put out flyers touting him to take care of that.

Dark-money groups signaled by the Republican endorsement--which means Carnahan is the candidate certain to favor limitations on jury awards because regular people can't be trusted--will do the dirty partisan attacks for him.

But if Carnahan is indeed the strict constructionist who believes, as he says, that we must abide purely by the words written without any elastic application or creative interpretation, then surely he would want to abide strictly by the word of his state's official code of conduct for judgeship candidates.

The code says he is not to "accept" such an endorsement. Clarity and devotion to judicial ethics require, then, that he must declare that he declines it.

"Back off, Republican candidate for Supreme Court tells his own party."

That's the headline I'm looking for.

It would be easy enough for him to do that. The state Republican Party's flyers could still get the word out that Republicans, who dominate the state, should vote for him.

Wynne, by the way, was a Democratic state legislator in the 1980s when Arkansas was a one-party, default-Democratic state--and when judges ran openly, and more honestly, with party affiliation.

State Democratic chairman Grant Tennille put out a statement last week that his party won't be doing any judgeship endorsing.

I thought I heard Wynne saying "thank the Lord." The "D" is toxic in statewide politics.

I almost wish the Democrats would endorse Wynne. Then he could show Carnahan how easy it is for a judgeship candidate to make clear that he most certainly does not accept a political party's endorsement.

"Don't put your kiss of death on me, Supreme Court justice pleads of Democrats."

That's the other headline I'm looking for.


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



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