Arkansas will elect two new justices to the Arkansas Supreme Court on May 18 or perhaps in a runoff later in the case of one of the seats. As with all elections for judgeships, they are the most baffling decisions that voters must make because candidates for judicial positions in states like Arkansas that still elect judges are bound by ethical if not legal restraints not to tell voters how they would rule in any case or any particular line of cases. To do so would cast a cloud over the impartiality of future orders that the judge might render.
But those restrictions also can make the choices clearer. Voters do not have to sort through misleading advertisements and slimy attacks on candidates’ opponents. You are left with what each of the candidates has actually done in his or her particular field of practice. Experience and reputation are about the only things that a discerning voter can count on.
That makes the decision for one of the Supreme Court positions easy. Judge John A. Fogleman has many layers of experience in adjudicating, prosecuting and private practice. The other candidate, Judge Courtney Henry, has almost none. The Leader endorses Fogleman’s candidacy for Position 3 on the Supreme Court, the seat vacated by the retiring Tom Glaze. Fogleman ought to be a suitable successor for that eminent jurist.
Fogleman has been a trial judge for 14 years in one of the busiest circuits, the northern Mississippi Delta. Before that, he prosecuted many cases as a deputy prosecuting attorney and he had a wide trial practice as a lawyer. He was one of the prosecutors in the famous case of the West Memphis Three, the young men who were convicted of killing three small boys whose bodies were found in a ditch 17 years ago.
There were allegations that he and the other prosecutors were overly zealous in the prosecutions of the three youngsters, who were convicted on less than overwhelming evidence. Some of the allegations are troubling, but show us a prosecutor who has not been excessively zealous in nailing down convictions. Since then, his career on the bench has been celebrated by both sides of the bar, plaintiff and defendant, for his fairness and scholarship. The trial lawyers made him their jurist of the year, a rare thing for an east Arkansas judge.
Courtney Henry is a bright and accomplished woman, but no one can say much about her legal achievements. She has had virtually no legal practice other than eight years as a clerk for judges on the state Court of Appeals. She ran for one of those seats in 2008 and was elected. She raises a lot of money for these races, overwhelming her opponents. No sooner had she taken her seat on the Court of Appeals for an eight-year term last year than she announced that she was running for the Supreme Court. This is what Shakespeare called vaulting ambition. If she is elected, she plans to live at Fayetteville and do her Supreme Court deliberations and writing from her home rather than the Justice Building at Little Rock. We have an idea that would produce some friction with the other justices.
For the other seat on the Supreme Court, Position 6, we find not enough discernible difference between Judge Karen R. Baker and Judge Tim Fox to make a recommendation. The Leader takes the coward’s way out and endorses both of them. There is a third candidate, Evelyn L. Moorehead, who has had a respectable private practice, 20 years’ worth, but she lacks the extensive judicial experience of Baker and Fox. If no candidate receives a majority May 18, a runoff will be conducted at the general election in November.
Baker, who lives in Clinton and commutes to the Court of Appeals in Little Rock, has been both a trial judge and a member of the Court of Appeals. She has been on the trial and appellate benches for 15 years after a stretch in which she had a private practice and served as a public defender for the poor in criminal cases. We have admired her work at the Court of Appeals. She wrote the powerful opinion for the court last summer when it invalidated the permits issued by the state Public Service Commission and the state Pollution Control Commission to build a giant coal-fired generating plant in southwest Arkansas that will produce intolerable amounts of earth-warming greenhouse gases and other pollutants. That took some independence.
Fox practiced law in North Little Rock for 21 years, including representation of the city, before he was elected to circuit and chancery court in 2002. He is a hardworking judge who demands punctual work from the attorneys in his court, sometimes to their dismay. His opinions have been widely acknowledged for their scholarship and fairness.
Take your choice, Fox or Baker. With either, we know what we are getting.
