LETTER FROM WENDELL GRIFFEN
I am pasting below two editorials from today's Arkansas Democrat-Gazette concerning the August 8 recommendation by a panel of the Judicial Discipline and Disability Commission to dismiss the charges pending against me. The lead editorial, which congratulates me for having persevered to this point while making the dour prediction that my stance somehow lowers the dignity of the judiciary, appears strikingly similar to the position taken by former Director Badami of the Judicial Discipline and Disability Commission, who filed the charges against me in the first instance. In addition to stating that I resemble former Justice Jim Johnson of the Arkansas Supreme Court and former Governor George Wallace of Alabama, who were both advocates for racial segregation, the lead editorial concludes by calling on Arkansas voters to protect judicial integrity and dignity, as if Arkansas voters (who elect our judges) cannot do so if judges are candid about their values rather than conceal them.
The second column is written by Meredith Oakley, who headlines the Voices page of the Democrat-Gazette. Oakley admits that she is not sure whether she favors judges speaking on issues of the day that are not involved in their courts. However, she agrees that the First Amendment protects the rights of people in our society to speak about public policy issues without being punished, and that the provisions of the Arkansas Code of Judicial Conduct with which I am charged are vague and overbroad.
I am not now and have never been an advocate of racial segregation. Hence, I am neither complimented nor congratulated by anyone, including an editorial writer, who purports to praise my dedication to the First Amendment by associating me with the segregationist views of Justice Jim Johnson and Governor George Wallace, which I have never embraced but always opposed. The charges I face, and which I have always challenged as unconstitutional, arose after I spoke openly about issues of morality and public policy. In most instances, my comments were uttered because I am an ordained Baptist minister. None of the comments involved issues or persons involved in pending or impending cases in any Arkansas court. I have never allowed my religious faith to influence the outcome of any decision in almost twelve years on the Arkansas Court of Appeals, and I never intend to allow it to do so. However, I have not, and will not, ever conceal my faith, pretend that my faith does not comfort and challenge me, or allow the government to intimidate or punish me because I speak openly about issues of public policy based on my understanding of the Christian gospel.
Furthermore, it is remarkable, to say the least, that the lead editorial in the only statewide daily newspaper in Arkansas would declare that freedom of speech somehow harms public respect for the judiciary, judicial integrity, dignity, and impartiality. The First Amendment exists because Americans value knowledge and candor in our public discourse and public officials, including the judges who decide our legal controversies. If judges are elected by the public, the public has the right to know what judges believe, whether they agree with those beliefs or not.
We can disagree with each other on public policies or values while also behaving with respect, dignity, and integrity. However, there is nothing dignified or consistent with integrity for a judge, or anyone else who aspires to public office, to conceal of his or her beliefs by claiming that the public will lose confidence in judicial integrity if it knows those beliefs. There is no way for the public to intelligently assess what a judge believes and how the beliefs operate in his or her life if the judge refuses to disclose those beliefs, or pretends to be prohibited from disclosing them on account of ethical rules that do not prevent disclosure in the first place but are interpreted to punish judges who disclose what they believe if people disagree with those beliefs. That is why the Supreme Court has since 2002 upheld the right of judges to speak about disputed public policy and legal issues that do not involve pending or impending cases in their courts.
As I wrote some time ago in an opinion editorial that responded to a similar Democrat-Gazette editorial, wise people have long understood that one should not buy a pig in a poke. One should especially be suspicious when the seller claims that the pig, let alone the pork industry, will be damaged if the buyers inspect pokes that hold pigs. I trust Arkansas voters to fairly and honestly determine from my record whether I am competent, honest, fair-minded, and diligent as a judge, whether those voters agree or disagree with my views on religion, sports, morality, the role and ways that public policy operates in our lives, or other subjects. With almost twelve years worth of published court opinions to my credit, I am can accurately report with honor that no party or lawyer has ever accused me of allowing my personal values about religion, sports, morality, or public policy to influence the outcome of their case. None of my more than 2,000 decisions has been overturned because of such impermissible influence.
Thanks to the First Amendment, no person in our society can be forced by the government to conceal his or her views on those matters, however, simply because he or she is a judge. Out of reverence for the First Amendment, we should condemn any notion of judicial "ethics" that supports intimidating or punishing any judge so that judge will be pressured to hide his or her views concerning disputed political and legal subjects that are not before his or her court in order to be elected, hold office, and be viewed as honest, fair-minded, competent, diligent, and ethical. And because the First Amendment protects freedom of speech, religious expression, association, and the press, we should be more than a little amazed, but not amused, if a newspaper editor complains because an elected official such as a judge is forthright about his or her values, while the editor professes to support the public's right to know what those values are and whether they play a factor in how that official does the public's work.