The governor may soon get to handpick two appointees to the seven-member Arkansas Supreme Court, depending on the outcome of two contests for seats on the high court.
One of the March 5 races will fill the leadership post of retiring Chief Justice Dan Kemp. Three of the four candidates for the top spot already sit on the court: associate justices Karen Baker, Barbara Webb and Rhonda Wood. Should one of the three win in March, or in a November runoff, Gov. Sarah Huckabee Sanders would get to decide who fills the winning candidate’s current seat for the next two years. That appointee would serve until the January after the next general election in 2026. The only potential scenario that would not result in a two-year Sanders appointment would be a surprise victory by the fourth candidate, Jay Martin, a lawyer, pastor and former Democratic candidate for governor.
Associate Justice Courtney Hudson‘s decision to seek a Supreme Court seat other than the one she now holds also could give the governor, rather than Arkansas voters, the chance to choose a new justice.
The race is an unusual one. Hudson has been an associate justice since 2010 but is now running for a different associate justice seat. She currently holds Position 3 on the court and hopes to move to Position 2, which was vacated last year by the death of Justice Robin Wynne. (State Supreme Court justices are chosen at large, meaning candidates for each position are voted on by the entire state, and they don’t have to live in a specific district.)
Hudson’s only opponent in the Position 2 race is Circuit Judge Carlton Jones, a former prosecutor from Texarkana whose judicial district includes Lafayette and Miller counties in south Arkansas. Position 2 is now occupied by Associate Justice Cody Hiland, who was temporarily appointed by the governor after Wynne’s death but is barred from running for that seat.
Why would Hudson want to move from one associate justice seat to another? The state’s strict judicial retirement rules seem to be one factor, as we explained in a story in September. Arkansas judges who are elected to office after their 70th birthday forfeit their state pensions, and Hudson said last fall that the timing associated with the Position 2 election cycle will work out better for her than the Position 3 cycle in terms of someday running for reelection when she approaches age 70. (She’s now 51.)
In short, Hudson is running for a post identical to the one she already holds, but the staggered terms assigned to the positions mean that winning the Position 2 seat would give Hudson a better chance at staying on the court longer.
But if Hudson wins the Position 2 race, it would open the door for Sanders to make an appointment to Position 3. The governor would appoint someone to succeed Hudson under Amendment 29 and Amendment 80 to the Arkansas Constitution, according to Jeff LeMaster, a spokesman for Attorney General Tim Griffin. That appointee would also serve until after the 2026 election.
If Hudson were to lose the Position 2 race, she’d retain her current seat. Hudson did not respond to a message seeking comment on the race.
Asked about Hudson’s effort to switch seats to secure retirement benefits, Jones said by phone, “I don’t think that’s a good reason for anybody to seek any office in the Supreme Court of Arkansas. … If she loses, she still wins, but I think the people of the state of Arkansas lose.”
Jones said it’s “always best” when Arkansans can elect their judges, though he understands emergencies such as Wynne’s death last year necessitate gubernatorial appointments.
“The Governor is vested with the authority to appoint a judge to Position 3 if my opponent wins,” Jones said in a subsequent email. “This is the law of the State of Arkansas, and the appropriate use and application of the law raises no special concern. What does concern me about this is having the need created by circumstances other the death of a Supreme Court Justice … or the retirement of a justice midterm. This instance would be an artificially created manipulation of the judicial retirement rules.”
When asked about the need to close Arkansas’s loopholes on judicial retirement issues, Jones said the Legislature may need to review the practice of running for an office “that is effectively a lateral transfer.”
The state Supreme Court has become markedly more politically conservative in recent years, but Hudson is generally seen as one of the more moderate justices. Ironically, a Hudson victory next month nonetheless could yield a more conservative court.
A Hudson supporter who closely follows judicial races said he is aware that some people have raised concerns about giving Sanders “the chance to appoint another conservative to the bench for a two-year appointment.”
“That may be true, but, as others have pointed out, by Justice Hudson getting in the race, it most likely kept a radical conservative like David Sterling or Nicholas Bronni from entering the race,” said the source, who spoke on condition of anonymity. “Judge Jones, or anyone for that matter, was not going to run unopposed. Many supporters of Hudson believe that without her in the race, whoever the radical right had put forward would have won and thus be elected for an eight-year term, not a two-year term.”
Bronni works in the state attorney general’s office as solicitor general. Sterling, a Republican, has previously run unsuccessful races for attorney general and the Supreme Court.
The likelihood of one or two open seats in the near future raises another question: If the opportunity presents itself, might Sanders appoint Cody Hiland to fill another Supreme Court vacancy when his time on the court ends in January?
Hiland, asked if he would consider another appointment to the Supreme Court, said he “would never presume to speculate on any potential appointments in the event of a vacancy.
“At this point, my only focus is on diligently carrying out the duties before me as a member of the court throughout the remainder of this term,” he wrote in a text message. “I appreciate the question, but engaging in any hypotheticals related to future positions would be unfair to the people currently running for those offices, as it is uncertain whether a vacancy will occur.”