You expect governors to make political appointments whenever there is a vacancy in the electoral establishment, even when the vacancy is in the judicial branch, where independence from politics is a foundational principle. Just like his predecessors, Gov. Asa Hutchinson took the political route in his first six months in office, but not last week when he was faced with the task of replacing the venerable Chief Justice Jim Hannah, whose grave health problems forced his resignation.
Hutchinson appointed Howard Brill, a distinguished professor of law at the University of Arkansas who is this state’s and perhaps the nation’s leading authority on ethics in the courts and in the legal profession. Even his title at the university informs his credentials for being chief of the state’s highest court for the next 16 months: Vincent Foster Professor of Legal Ethics and Professional Responsibility.
Lots of lawyers and judges have the requisite experience and wisdom to be the chief justice, including many with deep political connections, but none fits the Supreme Court’s and the entire judiciary’s peculiar needs at this moment as well as Howard Brill. His book “Arkansas Professional and Judicial Ethics” is the bible that guides the Arkansas ethics commissions in enforcing the state rules for the conduct of judges and lawyers.
We like to think that the governor, who has spent his professional life working in the federal and state courts, recognized the desperate need for a chief judge who would bring a gold standard for independence and probity to the Supreme Court at this suddenly critical stage. Justice Hannah brought that standard to the court but found himself last year embroiled in internal strife over the court’s role and direction.
Can we refresh your memory? After several controversial decisions in the last decade, including two that declared provisions of the state’s “tort reform” law unconstitutional, a movement began to put up money to elect appellate judges who would make “better” political decisions — decisions more favorable to corporate interests. A huge pile of money from the owner of the state’s largest chain of nursing homes dumped into the campaign treasury of one Supreme Court candidate in 2014 drove away opposition, and she was elected without opposition. One candidate for the Court of Appeals in the same election, a friend and political ally of the new justice, dropped out of his race and pleaded guilty to taking a bribe after it was disclosed that he sharply reduced a jury verdict against the same nursing home owner when he dropped tens of thousands of dollars into the judge’s campaign.
Another candidate for the Supreme Court won last year after a Washington, D.C., front group with anonymous donors spent $400,000 in the closing days of the campaign attacking his opponent as a defender of sex perverts.
Then there was the same-sex marriage case, where the members of the Supreme Court dithered for almost a year to avoid making a decision that would anger thousands of people on one side or the other of the issue. This spring, Justice Hannah and another aging justice recused in a procedural part of the case to protest the machinations of three or four justices who wanted to dodge making a decision that would anger political supporters and voters.
Last fall, three justices voted in the court’s conference — decisions are made secretly until the decision is released — to uphold Pulaski Judge Chris Piazza’s order striking down the state law forbidding same-sex marriages, obviously so that they could control the case. They never released the decision. When two justices were replaced on Jan. 1, the three justices switched their votes, again in the closed conference, to reverse Judge Piazza rather than uphold him, but then never released that decision either.
When the U.S. Supreme Court ruled this June that such state laws were unconstitutional, the new majority on the Arkansas court simply declared the Arkansas case moot so that no one would ever know how they voted.
Judges everywhere are appointed or elected to make decisions in the lawsuits before them without regard to whether the decisions will be popular. The founding fathers crafted the Constitution with a view toward making the judiciary the one independent and nonpolitical branch. Public confidence in the courts’ independence and integrity — fearlessness, if you will — was essential to a democratic system of governance that was beholden to the rule of law.
We don’t want to put words into Gov.Hutchinson’s mouth, but we hope and believe that this was uppermost in his mind when he appointed a chief justice who had no known connection to his own campaigns for political office or his party.
He deserves everyone’s thanks.
