State Sen. Jeremy Hutchinson (R-Little Rock) has introduced a proposed constitutional amendment that would provide for the appointment of Arkansas Supreme Court justices by the governor, rather than their election. Other judges — including those on the state Court of Appeals — would continue to be elected.
The problem with electing justices is self-evident: Winning elections typically requires politicking, which judges theoretically are supposed to avoid. The issue became especially salient in 2016, when a swell of “dark money” attack advertising — much of it from out of state — clouded the races for two open seats on the Supreme Court. A committee of the Arkansas Bar Association has recommended amending the state constitution to provide for appointment of Supreme Court justices. However, the justices sitting on the court today prefer elections to continue.
Hutchinson’s measure, Senate Joint Resolution 14, would create a Judicial Nominating Commission with five members (three appointed by the governor and one each by the Senate President Pro Tem and the Speaker of the House). When a vacancy appears on the Supreme Court, the governor would submit the names of five candidates to the nominating commission. The commission would then rank the candidates in order of merit, and would have the option of striking up to two names from the governor’s submissions. The governor would select his or her pick from the commission’s ranked list, after which the Arkansas Senate would have to confirm the nominee. If the senate rejected the nominee, the process would start over.
Supreme Court justices would be appointed for a term of 14 years under SJR 14; they currently serve eight-year elected terms. SJR 14 would be placed on the ballot before voters in 2018 if the legislature approves it.
Why the complexity of the proposed appointment process? “For accountability,” Hutchinson told the Times. “I obviously trust this governor emphatically … but we want to make sure [future governors] are appointing high-quality, qualified judges to the highest court.” (Governor Asa Hutchinson is Sen. Hutchinson’s uncle.)
Empowering a nonpartisan commission to strike names from the governor’s list would help “weed out lackeys and sycophants who just contributed a lot of money,” he said. The ranking system, Hutchinson added, would “put some pressure on the governor, but wouldn’t tie his hands” in making the ultimate selection. Requiring confirmation from the senate would be “similar to the federal system” for appointing judges, he noted. He said confirmation would likely go through the Senate Judiciary committee and would require a simple majority vote on the floor of the full senate.
However, Sen. Hutchinson was not optimistic about his measure’s prospects. “I don’t think it will be received with hostility, but I don’t think it passes,” he said frankly. “I hope it will generate some discussion about … at least improving the election process.” He mentioned a bill by Rep. Clarke Tucker (D-Little Rock) to limit the role of dark money in the campaign season.
“If [Tucker] is unsuccessful in getting the full bill passed, I’d like to see if he’d consider amending it to only apply to judicial elections,” Hutchinson said.