Is Arkansas Supreme Court Justice Josephine Hart, who turns 76 Nov. 20, going to seek re-election March 3?
Her unwillingness to answer that question and increasing rumors of a plan for her to stay silent to allow a last-minute entry into the race by her former law clerk and family friend, Attorney General Leslie Rutledge, has contributed to a decision by Pulaski Circuit Judge Morgan “Chip” Welch, to consider making the race.
This is the situation: If Hart were to run again, by being elected after she turned 70, she’d not be eligible for retirement benefits should she decide, or be forced by ill health, to leave the bench. That element of the law is widely perceived as a disincentive to an older judge running again, but it is not a bar. As a judge on the Court of Appeals and then Supreme Court since 2002, Hart will have accrued enough time in office by the end of 2020 to qualify for retirement pay of almost 60 percent of the almost $175,000 paid associate justices. That’s more than $100,000. She also qualifies for Social Security and benefits from the 20 years she served in the Army, ending as a colonel.
Hart has not responded to my telephone calls or written questions about whether she’ll seek another eight-year term. Welch, who I called after hearing of his interest in the race, said he, too, had not gotten a response from his efforts to find out Hart’s plans. “I respect Justice Hart,” he said. “She’s done a good job.” Should she say she’s running again, Welch said he would not.
But Welch, too, has heard the reports of a potential last-minute Rutledge candidacy and that’s encouraged his exploration of a run for the office. He’d be able to run as “judge,” thought to be a plus in judicial races. The race falls in the midst of a second six-year term on the bench to which he was re-elected without opposition in 2018. He’s practiced law for 43 years.
Welch said he was interested in running to preserve an independent judiciary. He noted a trend in recent years for candidates for judgeships, nominally non-partisan positions, to send signals of alliance with the now-dominant Republian Party. Current Associate Justices Rhonda Wood and Shawn Womack, a former Republican senator, used Republican networks and talking points, as well as endorsements by Republican politicians and party officials, to help their campaigns.
Rutledge, as a highly partisan Republican attorney general, could be expected to take a similar approach should she run.
Will she run? She did not respond to my written inquiry about her plans.
Silence from both Hart and Rutledge seems of at least some significance.
Rutledge has also been mentioned as a candidate for governor in 2022. But the interest of Sarah Huckabee Sanders in that race is thought to mean Rutledge would not be a candidate for governor. Rutledge campaigned for former Gov. Mike Huckabee’s presidential candidacy and worked for a time on the governor’s staff.
Decisions must be made soon. The election will be March 3, thanks to an early election tied to moving up Arkansas’s participation in the 2020 presidential primary. Nov. 11 is the filing deadline for judicial offices.
Hart has been a feisty, independent and at times contrarian member of the Supreme Court. She’s found more often than some justices in sympathy with appeals of criminal defendants and injured plaintiffs. These are not hallmarks of your typical Republican-aligned judge. Rutledge’s record as attorney general is more in keeping with the pro-business, anti-abortion, anti-gay rights, anti-regulation GOP doctrine. For that reason, she’d be sure to attract huge sums from dark money groups that have spent millions in recent state judicial races.
“I don’t want Democratic justice or Republican justice,” said Welch. He said he’d made “both sides unhappy” during his time as a lawyer. He nonetheless would likely be viewed more favorably by the plaintiff-oriented segment of the trial bar. He was president of the Arkansas Trial Lawyers Association in 1991-92.
It didn’t harm Rutledge in her races for attorney general, but Rutledge’s checkered work record — outlined here in a column by Ernest Dumas — would be a factor. As attorney general, she’s endorsed a national litigation agenda, but the heavy lifting in court has been done by others. Her only extensive work history prior to the attorney general election was as a court clerk to Hart at the Court of Appeals. She had an ugly departure from a state legal job at Human Services because of errors on the job. “Do not rehire,” was added by a supervisor to her work record.
Bottom line after the speculation: Jo Hart’s plans aren’t known. If they aren’t known soon, Chip Welch seems likely to be in the race. It would mar Hart’s record to participate in a secret deal to aid the elevation of a friend to her seat.