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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 [First Page] [222], (1) Lines: 0 to ——— 7.5pt PgV ——— Normal Page PgEnds: TE [222], (1) chapter ten The Power and Politics of the Judicial Branch [Nonpartisanship]’s a move in the right direction in the election of judges who are going to resolve disputes that you and I have in this life. I don’t think that should be political. State senator Bill Walter, 1997 Who says politics should be totally removed?You want judges who care about people. Otherwise, how can you make laws that everybody can abide by? Justice Darrell Hickman, Arkansas supreme court, 1977 In the past, state judicial systems were considered to be above the ordinary pulls and pressures of politics and therefore beyond the legitimate concern of politicalscientists.Inrecentdecadesthatantisepticapproachhasbeenalmost entirely displaced by a more realistic recognition that judges at courts are deeply rooted in a state’s political system and have many strong linkages to it. Some of these linkages have already been mentioned. In chapter 7 it was noted that some judges’ opposition to judicial reforms in the proposed 1970 and 1980 constitutions ran deep, and they were among the most articulate and effective opponents of the documents. And the “do nothing” bills described in chapter 9 are often those that particular legislators sponsor on behalf of “their” judges or for other court personnel in their constituencies.l Assuredly, and fortunately, there are laws, canons of ethics, and general proprieties that preclude judges from engaging in some of the more overtly political activities commonplace in the executive and legislative branches. Judges do not postpone decisions on controversial issues until they have taken public opinion surveys, nor do they let lobbyists swarm through their chambers. They do, however, because they must, maintain good political The Power and Politics of the Judicial Branch 223 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 [223], (2) Lines: 64 to 68 ——— 0.0pt PgVar ——— Normal Page PgEnds: TEX [223], (2) rapportwiththelocalgovernmentsthatprovidealargechunkoftheoperating funds for all but the appellate courts in Arkansas and with the legislators who establish their salaries and expense allowances. As one state senator advised a group of judges, “If you want a pay raise you should come to see us and remember, we are like teenagers—every once in awhile we have to be stroked.” Not all judges follow the practice of one Washington County judge who sent Christmas cards to his past jurors before every election year, but all judges must cultivate sufficiently strong ties to their constituents and clientele groups, especially the bar, to ensure their survival in the electoral system.2 State courts also are political in the impact they have on public policy. One 1961 study of the Arkansas supreme court noted that “basically, the Supreme Court of Arkansas is a private law court. . . . It is not a court before which many of the great political issues of the day are paraded and whose decisions arouse the interest and passions of the citizenry.” There remains considerable truth in this statement. Of their 208 civil decisions in 2000, only 13 dealt with the constitutionality of state statutes as compared with 47 dealing with contracts or other legal obligations and 98 dealing with automobile negligence or other torts.3 However, the study understates significantly the impact of the modern court in taking actions that do have policy implications. Although the state supreme court acts rarely on matters that enter the public debate, when it does it has a catalytic impact in altering the agenda that other actors face. Indeed, though some scholars have noted the waning of the so-called new judicial federalism (i.e., state appellate courts’willingnesstogobeyondtheU.S.SupremeCourttoprotectindividual rights using expansive interpretations of state constitutions), considerable evidence suggests that Arkansans do increasingly see litigation as a means of changing public policy when majoritarian institutions are nonresponsive to them. Moreover, on occasion, the state’s generally moderate courts oblige them.4 As we will explore in chapter 13, a series of decisions challenging the constitutionality of school-funding formulas and property tax assessment practices forced these items to the top...

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