Q/A on Judicial Politics in Arkansas

John C. Davis

Note: Portions of the following have also appeared in an article written by David Brown and published by the Brennan Center for Justice at NYU Law’s State Court Report. The bold type reflects Mr. Brown’s questions and the italic portions are my responses. The full article can be accessed here.

1. As you write in your book, Arkansas has experienced a remarkably rapid transition from Democratic to Republican stronghold in recent years. The Arkansas judiciary is officially nonpartisan, but I’m wondering if you can provide context about how the Red-Blue political transition has affected state courts. Are you seeing the Red-Blue divide play out in judicial races, the makeup of the courts, etc.?        

Arkansas has undergone a partisan transformation that is nothing short of breathtaking. However, judicial races have, for the most part, been immune to these partisan changes, due in large part to a decision made by voters years before the state’s dramatic partisan shift. Arkansas voters passed a constitutional amendment in 2000 that, among other things, made judicial contests in the state non-partisan. Prior to that, judicial races in the once-solidly-Democratic state were partisan. For over two decades, Arkansas judicial races have been non-partisan as the state transitioned from one of the most Democratic states in the country to one of the most Republican. The partisan change in Arkansas politics is still relatively new. It appears that Arkansas voters—of whom, it stands to reason, a majority would favor a more conservative, GOP-aligned judicial candidate have found it difficult to suss out judicial partisanship and philosophy in the current electoral landscape. While many of the state’s justices appear to be conservative, it is difficult to say how the state’s broader partisan shift has directly impacted these judicial contests because judicial candidates have proven difficult for voters to pin down with regard to identifying their partisanship. Traditionally, Arkansas has low voter turnout, and judicial races in Arkansas do not enjoy a particularly high level of attention—exasperated by the fact that the state’s judicial elections take place during the primary election, months before the General Election. Judicial races only appear on the general election ballot if a runoff is required, so most of these contests are decided in the spring of an election year, when a relatively small portion of the state’s voters are mobilized for what are otherwise  partisan primary contests. The non-partisan judicial races are lost in the mix. In addition to the lack of party identifiers among judicial candidates, there are limitations imposed from the practice among judicial candidates to avoid speaking about specific cases, real or hypothetical. This further complicates the ability of voters to categorize judicial candidates by their partisan leanings or even their judicial philosophies. Many of these judicial campaigns spend considerable sums of money—with even more outside funds dumped into the mix—but the appeals are either based on the candidate’s qualifications and past experience or are negative appeals from outside groups; both methods seem to get  lost in the larger mix of partisan contests competing for attention and airtime. For example, the losing candidate for the most recent non-partisan run-off contest for Chief Justice of the Arkansas Supreme Court was endorsed by the state GOP along with many popular Republican elected officials in a state that went overwhelmingly Republican in every other statewide contest. It seems reasonable to believe these endorsements went largely unrecognized by most voters and were lost in the shuffle of the other partisan contests. Otherwise, you’d think the GOP-endorsed judicial candidate would win a statewide race in a GOP-dominated state. Due to the relative lack of saliency of the contests among voters, the fact that the bulk of these are settled in primaries instead of the general elections, and the non-partisan nature of judicial elections in Arkansas,  we have not yet seen voters consistently match their vote choice with their partisan preference in these non-partisan races. The current makeup of the state’s Supreme Court is certainly majority conservative, aligning with the majority of voters’ preferences, but two of the seats occupied by conservative jurists were due to appointments made by Governor Sanders, not by Arkansas voters navigating the non-partisan electoral landscape. In other words, the state’s judicial politics, being non-partisan, might track the state’s partisan switch, but it lags behind the partisan contests and requires much more nuance.

2. Certain Supreme Court races in Arkansas have attracted a good deal of “dark money” from outside groups. In 2018, for example, nearly $3 million was spent in an effort to unseat Justice Courtney Hudson. What’s driving this kind of spending and political activity around judicial races –- especially in a state with an already large conservative majority on the court? I think outside issue groups and like-minded “dark money” donors see Arkansas judicial races as opportunities to influence state policy in a more targeted and efficient way than other electoral contests. Tort reform and other hot button judicial issues in many states have drawn attention from outside groups, and it appears Arkansas is not immune.

3. State supreme courts are known for presenting a collegial face to the public and letting ideological disagreements play out in opinions. It’s still fairly rare to see internal arguments like this spill over into public view. How might Arkansas voters/the public react to this kind of politically tinged fight on the court? Do you see it affecting public trust in the courts? For the past several months, Arkansans have been witnessing a level of dysfunction from their state Supreme Court, the likes of which no living person has seen before. The disagreements appear to have little to do with differences in judicial philosophy and more accurately reflect conflicts over personality and tussling for power. While the average Arkansan isn’t likely following the drama out of the state Supreme Court too closely, attention and frustration is building. A legislator last week asked the Chief Justice in a committee hearing what he should tell his constituents who have been concerned about the recent dysfunction of the Court, so I think the drama is beginning to draw more attention and could lead to a decline in public confidence in the Court if left unattended.

4. Three sitting members of the court ran for chief justice in 2024. The primary vote was extremely close (I think the top 3 candidates were separated by a point or two), and Chief Justice Baker defeated Justice Wood by three or four points. To your knowledge, has there been a situation like this at the Arkansas Supreme Court – where two candidates who’ve come pretty close to winning remain on the court under a new chief justice? The dynamics of this contest were already an unusual situation for Arkansas voters which were punctuated by the continued in-fighting and administrative drama that followed the primary and run-off elections for Chief Justice.

5. Finally, I’d be curious about your overall take — what you make of the situation at the court between the chief justice and five of the other six justices. Given your focus on Arkansas modern political history, what has been your reaction to it, and how do you see this playing out? I have a hard enough time explaining the past let alone predicting the future. However, I think what we are seeing in the Supreme Court is mainly due to some significant personal grievances between and among some of the justices and, perhaps, partly the effect of pressures felt on the Court as the only non-partisan branch of a one-party dominated state. I expect the dysfunction to give way to a tense truce eventually. However, clash and conflict from the push and pull of a non-partisan bench in a single-party dominated state will cotinine.