By John Lyon
Arkansas News Bureau

LITTLE ROCK — Former U.S. Supreme Court Justice Sandra Day O’Connor is heading up a group of judges from around the country who will push next year for an end to the practice of electing judges, but legal experts in Arkansas say the idea will be a tough sell here.

O’Connor and several sitting state Supreme Court justices are promoting the O’Connor Judicial Selection Initiative, a creation of the University of Denver’s Institute for the Advancement of the American Legal System. During legislative sessions next year the judges will urge the states that now elect judges — Arkansas is among them — to end the practice and create commissions to handle judicial appointments.

“What we’ve seen is that direct election of judges does involve in many cases huge amounts of money and attack ads, and I think it’s a great leap of faith for the public to imagine that a judge who has received substantial campaign contributions would not be impacted if faced with those contributors in his or her courtroom,” said Dallas Jamison, spokeswoman for the institute.

O’Connor has argued that voters tend not to follow judicial elections or even recognize judge’s names on the ballot.

Donna Pettus of Fayetteville, president of the Arkansas Bar Association, said she doubts Arkansans are interested in making a change.

“My feeling, just from conversations I’ve had with fellow bar members and judges, is that right now the people of Arkansas like electing their judges,” Pettus said.

No Arkansas judges are on the initiative’s advisory committee. Jamison said she did not know if the initiative would be involved in Arkansas’ legislative session next year — the session will be confined to budget issues unless lawmakers vote to expand its scope — but she said the effort also will include a public education campaign.

“It requires a constitutional amendment, and that means therefore that not only do lawmakers need to get educated about these issues but the public does as well, because they ultimately get to vote on whether you do get to make the switch in your state,” Jamison said.

The initiative was launched a few months after the U.S. Supreme Court narrowly ruled this year that a West Virginia Supreme Court justice should have recused himself instead of ruling on a dispute involving a coal company owned by his largest campaign contributor.

Pettus said no cases like that have occurred lately in Arkansas.

“There’s been an occasional issue here and there, as there would be in any state, but we have not been hit by the major scandals that have caused problems in other states,” she said.

State Rep. Steve Harrelson D-Texarkana, a lawyer and chairman of the House Judiciary Committee, said he believes a John Grisham novel from last year, “The Appeal,” may have spurred some interest in the idea of abolishing judicial elections.

In the book, as in the West Virginia case, a judge who has received campaign contributions from a company’s CEO casts a deciding vote in the company’s favor.

But Harrelson said he does not see a significant level of support for changing the current system in Arkansas, especially after voters approved a constitutional amendment in 2000 to make judicial elections nonpartisan.

“I think taking judges out of the political arena and having them run as nonpartisan candidates has really done a tremendous job to make judicial elections as unbiased and impartial as possible,” Harrelson said.

He noted that the Arkansas Code of Judicial Conduct bans judges from soliciting or accepting donations except through a campaign committee. The code also states that a judge or judicial candidate “should, as much as possible, not be aware of those who have contributed to the campaign.”

Could the current system be creating a public perception of impropriety, deserved or not?

“I’m not so sure that the appointment of a judge is going to erase all that,” Harrelson said. “I think there will still be accusations of the good ol’ boy system, putting friends in high places and things like that.”

Jamison said the initiative supports replacing elections with a “transparent and accountable” merit selection system in which judges would be assessed based on their qualifications and the process would open to the public. At the end of a judge’s term, the public would vote on whether to retain him or her on the bench.

“You’re running against your record, not against another candidate,” she said.

Former Arkansas Court of Appeal Judge Wendell Griffen said O’Connor’s effort is unlikely to gain traction in a populist state like Arkansas.

He also said O’Connor is “misguided” when she cites uninformed voters as an argument for doing away with judicial elections.

“She’s attacking the symptom,” Griffen said. “The symptom is the uninformed voter. But she’s not addressing the cause. The cause is, you don’t provide information to the voter and provide information in the context that the voter can find useful.”

Appointing judges would do nothing to make the public better informed and could result in fewer judges who are minorities or hold views outside the mainstream, Griffen said.

Jamison said the initiative supports selection of judges by committees mostly made up of non-lawyers with wide-ranging backgrounds, to ensure diversity.

Griffen, who was investigated by the state judicial discipline panel but never sanctioned for speaking publicly on issues during his tenure, said he faults the education, judicial and legal systems for failing to educate the public about what judges do.

A system that discourages judges from talking about themselves and what they do and shields itself from scrutiny — by, for example, allowing cameras to be barred from courtrooms — does the public a disservice, Griffen said.

“We are public servants. The public has a right to know what we do and how we do it,” he said.