Like its federal counterpart, the Arkansas Supreme Court has had a run of ill fortune lately, at least by the lights of founding fathers like Alexander Hamilton, who said public confidence that judges were impartial and free of partisan influence would be vital to preserving the democratic experiment.
The judiciary’s duty, the founders thought, was to see that the popular impulses of the two political branches of government, which enjoyed the power of the purse or arms, did not overrun the rights and restraints enshrined in the Constitution. The basic doctrines of the separation and balance of powers in the national Constitution depended upon judicial independence. If people ever detected that the judicial branch followed the whims of a party, one of the other branches, or a powerful group rather than the law, society would be in deep trouble.
It turns out that much of the public now expects and even wants judges, especially the appellate variety, to be partisan, at least as long as the jurists are sure to favor their point of view and their party’s, whether it is for or against a woman’s right to control her own reproductive organs, or any other burning issue of the day. Hamilton and James Madison just couldn’t foresee the need to do the most popular thing.
The seven Arkansas justices faced the unusual humiliation this spring of having set out to destroy the career of a lower-court judge (perhaps only coincidentally a black man) who expressed passionate, uninhibited and often unpopular convictions, but then failing to get it done. They saw their own ethics office duck the task for two years and then backhandedly exonerate the judge.
The justices even resisted testifying under oath about why and how they came to lodge the complaint against the judge, specifically whether it was at the behest of Republican legislators who were calling for the judge’s impeachment.
It took the ethics office an embarrassingly long two years — so long that most people couldn’t remember what the fuss about Judge Wendell Griffen was all about. The investigation that the Supreme Court ordered could have taken no more than two hours, but the court’s ethics unit finally admitted in mid-June that it had to drop the whole matter because it and the Supreme Court had violated his right to a speedy trial. The absurd delays tell you how much the Judicial Discipline and Disability Commission and its legal staff must have abhorred their assignment from the justices.
Griffen, the first African-American lawyer at the state’s most eminent corporate law firm, where two presidents of the American Bar Association labored, had been in public life for more than a quarter-century, first on a quasi-judicial state commission and then as a state appellate jurist and circuit judge. He was known for sticking rigidly to the law, no matter its consequences. The head of the state AFL-CIO and a union lawyer once visited Gov. Bill Clinton to ask him to remove Griffen as a workers compensation commissioner because he ruled from time to time for employers when his sympathies were always supposed to be with workers.
But Griffen also was an outspoken pastor who took his ministry public, in protests against racial discrimination and state and national policies. He was a disciple of Christ who was duty-bound to proclaim His teachings regardless of the consequences. It was separate from Griffen’s judicial work, and he was undaunted by fierce editorial criticism from the state’s big daily paper and from Republican lawmakers and state officials. The U.S. Supreme Court in 2002, in an opinion by conservative Republican justices, struck down laws and rules that restricted the free speech of candidates for judge and, by implication, judges themselves. Griffen took it to heart.
The state Supreme Court’s attack on Judge Griffen followed a quick hearing in April 2017 when he issued a temporary order requested by a drug company that wanted to stop the state from using its product to execute a prisoner. He ordered the state not to use the drug until he held a full hearing on the matter. Then the judge took off his robe and drove to the Governor’s Mansion to join Catholic, Protestant and Jewish clerics and parishioners for a Good Friday protest against the death penalty. He was garbed in a white robe and lay upon a cot. He went not as Judge Griffen, but as Rev. Griffen and he viewed it as an obligation to his church and to his parishioners. Griffen always acknowledged that he believed that both the Bible and the Constitution enjoined executions by the state, but so have other justices and trial judges who still presided over capital-murder trials and appeals and followed the law.
Republican legislators called for Griffen’s removal from office. The Supreme Court promptly suspended his order, barred him from ever trying capital cases and filed a complaint with the Judicial Discipline and Disability Commission, which works under its supervision, asking that Griffen be investigated for violating canons that ensured impartiality or the appearance of it.
If any expression of moral opposition to or support for executions barred a judge from ever sitting on a case, then any justice or trial judge who was ever involved in such a case could never sit on another, for they would have shown their partiality.
Judge Griffen’s most ardent admirers quail at his insistence on proclaiming his convictions, even on the most hostile occasions. With Griffen, there is never any political calculation, one way or the other.
I am quite convinced that several of the justices soon regretted their haste after Griffen’s temporary drug order (reaffirmed, by the way, by a second judge and also by the Supreme Court’s ethics director) and his imitation on the same day of Jesus at Calvary. But they insisted to the end that they would not answer questions under oath about any illegal ex-parte communications they may have had with legislators and others.
For four years or longer, the court’s once fairly honorable reputation for independence from political persuasion has been on the decline, owing partly to the huge investment in Supreme Court races by secret donors but also for its cravenness on the matter of whether people of the same sex have an inherent right to get married. Both the state and federal Constitutions make it clear that they do, whatever anyone may believe about the morality or religious sanctions of such unions. The justices voted 6-to-1 in private conference in 2014 that couples had a clear constitutional right to get married, but secretly dithered for much of a year until the U.S. Supreme Court made their points of view moot. It is hard to arouse much admiration for such timidity. The subsequent election of two justices openly committed to Republican causes, such as the punishment of men like Wendell Griffen, couldn’t restore confidence in the institution.