Your right to elect AR Supreme Court Justices still under attack

It is like a scene out of a monster movie where you think the monster has been killed, but in the next scene, when everyone has relaxed, the monster springs up and attacks again.

If you skim the news you may think the effort to take away your right to vote for Supreme Court Justices is dead. You may think the effort has ended to have political insiders appoint Arkansas Supreme Court Justices.

The headlines give the impression your right to vote is secure. After all, the media reported the Arkansas Supreme Court passed a resolution AGAINST the appointment of justices and the Arkansas Bar Association (representing lawyers) FAILED TO APPROVE draft legislation intended to give the Governor the power to appoint Supreme Court Justices from a list submitted from a commission.

It may seem like the effort is dead, but it is not.  The effort continues unabated.

  • Governor Asa Hutchinson has not shown any sign of backing off his support for appointment of Supreme Court Justices. And, what governor wouldn’t support it considering it will be the Governor who will be bestowed with the power to appoint the justices.
  • Supporters of appointment see the Arkansas Bar Association’s failure to get the two-thirds vote necessary to propose draft legislation as merely being about the details of the proposal.
  • While the Arkansas Bar Association did not pass the particular draft legislation it had under review, the association is on record as supporting the appointment of justices. The association president told reporters the association can consider proposed legislation during its February meeting.[i]
  • Representative Matthew Shepherd says he expects to file a proposed constitutional amendment during the upcoming legislative session to try to end the election of Supreme Court justices.[ii]

The Arkansas Supreme Court is not alone in its opposition to ending the practice of electing justices. The Arkansas Judicial Council, which represents Arkansas judges also opposes the appointment of judges.

If the Arkansas Supreme Court and the Arkansas Judicial Council are opposed to changing from elections to appointments, why is there still a push to change to appointments?  Earlier this year there were some judicial races that got very nasty because of hit pieces sent out by an out-of-state group that is hard to identify and its source of income is also hard to identify (sometimes referred to as “dark money”).

Instead of trying to deal with the problem of the ads, some people are using the situation to try to take away your right to vote for Supreme Court Justices. 

If the problem is “dark money”, putting the public in the dark though judicial appointments is not the solution.  If you think it is hard to keep up with who is trying to influence judicial elections now, imagine how much harder it is going to be to identify who is influencing appointments. Good luck trying to figure out who is influencing judicial selection commissioners and the Governor.

It should be noted that both under the draft considered by the Arkansas Bar Association and under Representative Shepherd’s 2015 proposal (HJR1005 of 2015) the Governor and the legislature would both appoint members to the nominating commission and the Governor appoint a justice from a list submitted by the nominating committee. See any problem with that?  The judiciary is supposed to be one of three independent branches of government but both the Executive and Legislative branches would have a say in the selection.

Another concerning aspect of this effort is that it is LEGAL for the legislature to propose constitutional amendments that are deceptive. The legislature has a track record of doing just that. Their proposals can only be challenged if the deception is determined to be so bad that it constitutes “manifest fraud.” With deception being a legal tool of the legislature, we wonder will voters understand what they are being asked to give up?

If the Governor, legislature, and the Arkansas Bar Association are able to take over the selection of Justices of the Supreme Court, you can be assured there will be a future effort to take over the rest of Arkansas judgeships (circuit and district) and to appoint them as well.




[i] Vote rejects draft on justice selection, Arkansas Democrat Gazette, 12/17/2016

[ii] Arkansas Supreme Court opposes appointing justices, judges, by ANDREW DeMillo – Associated Press, 12/16/2016