Arkansas will have to be told once again whether the First Amendment to the Constitution applies to Judge Wendell L. Griffen of the Arkansas Court of Appeals. It does protect his right to speak as much as it does yours and ours, and an appellate court will one day affirm that one more time.
Meantime, Judge Griffen, who is black, will have to stand on the scaffold accused and probably convicted of dishonoring his judicial robes by uttering an opinion on moral issues of the day from time to time, usually in his capacity as a minister of the Gospel. The state Judicial Discipline and Disability Commission Monday formally accused the judge again of violating the code of conduct for judges by expressing opinions while he was not on the bench.
Yes, that is the charge. Now the commission will hold a hearing, where Griffen will dispute the accusation, and then it will discipline him. The discipline could be a rebuke, a suspension or expulsion from his position on the Court of Appeals, to which people have twice elected him. Then, two or three years from now, the Arkansas Supreme Court or a federal court will overturn the sanction and restore his good name. All that has already happened once, but the commission by a narrow vote wants to try one more time.
In the interim, he will seek re-election, and voters might assume that the commission’s rebuke or whatever else it does means that he really has done something wrong and defeat him. One candidate has already been emboldened to run against him in 2008.
Here is what Judge Griffen is accused of doing:
Soon after Hurricane Katrina in September 2005 he criticized the federal government’s response to the hurricane in a discussion at an NAACP banquet. The remark got in a newspaper.
A couple of days earlier, during a discussion at a Baptist convention in Columbus, Ga., (Rev. Griffen was an officer of the national Baptist association) he talked about the qualifications of John Roberts to be chief justice of the U. S. Supreme Court, apparently not favorably. A story in the little Georgia paper characterized it as criticizing Roberts’ nomination. Someone sent the article to the Arkansas commission.
Last year, Rev. Griffen was one of a number of ministers who wrote letters formally endorsing an increase in the minimum wage. They were released at a press conference. Griffen’s was on his ministerial stationery, not the court’s. He also was on record making a comment defending the rights of homosexuals. They were God’s children, too.
James Badami, the commission’s director and Judge Griffen’s prosecutor, maintains that these deeds destroyed public confidence in the court’s independence and impartiality. This was his reasoning: If someone who liked the government’s handling of Katrina, or supported John Roberts, or opposed the minimum wage or hated homosexuals had a case before Judge Griffen he would wonder whether the judge would be fair to him.
The fact is that the man’s lawyer could tell him the backgrounds, philosophy and perhaps the specific views of all the judges hearing the case. Almost everyone who runs for a judgeship in our elective system has a public record. Most members of the Arkansas Supreme Court, who will eventually hear Griffen’s case, were active in politics before they went on the court. Lawyers and in some cases much of the electorate knew their political views when they ran for the court although they may not have reiterated them in the campaign.
Judge Griffen has uttered no public thought about any issue that is before the court or likely to go there, unlike several white judicial candidates of recent years. If he did, of course, he would need to recuse from such a case, as judges do all the time. But all of that is beside the point. The First Amendment guarantees everyone the right to express their opinion in the marketplace of ideas, and it does not except appellate judges. The U.S. Supreme Court, in a ruling adopted by the court’s conservative wing, affirmed that years ago.
Badami, who incidentally is known to hold opposite views from Griffen on at least one of his utterances (about homosexuals), knows that the courts will ultimately sustain Griffen’s right to express his pastoral views on issues of the day, notwithstanding that on weekdays he wears a robe and not a clerical collar. But putting the judge in the dock may accomplish what his foes have been unable to do at the ballot box. They should not be allowed to succeed.
