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No more standing mute

New rules will let judges address issues. Whether they want to or not.

by and


Arkansas and other states have for many years enforced rules restricting the speech and actions of judges and judicial candidates, on the theory that judges and judicial candidates should not only be impartial, they should appear to be impartial. The rules have been interpreted to mean that judges and judicial candidates must remain silent on almost everything except their own qualifications to serve. Though seeking elective office, and thus “politicians” by definition, they don't talk about issues and they don't talk about opponents. It makes for dull judicial races.

But the old system is crashing, as federal and state courts are ruling that these restrictions on judicial speech violate the First Amendment of the United States Constitution. Newer, more free-wheeling rules will apply to judicial races. These should make for better, or at least more interesting, politics. They may make for worse law.

This is a development feared but not totally unexpected by many lawyers and judges. One prominent Arkansas judge says that he's always been in favor of the restrictions on judicial speech, and he's always known that if the rules ever went before the U.S. Supreme Court, they'd be declared unconstitutional. His judgment has been vindicated, but he's not happy about it. In the case of Republican Party of Minnesota v. White, the Supreme Court made such a finding, by a 5-4 vote. State regulatory bodies are making similar findings, in conformity with the White decision. The Arkansas Judicial Discipline and Disability Commission cited White in its recent dismissal of charges against Judge Wendell Griffen of the Arkansas Court of Appeals.

The American Bar Association views dimly what it calls the increased politicization of American courts, a trend that has been under way for some time. An ABA committee concluded that “the White case is likely to politicize judicial elections as never before. Judicial candidates will be competing for votes on the basis of their positions on issues they will later decide as judges. When voters ask for the candidates' views on politically explosive issues of the day, the candidates must either answer, or decline and hazard a negative reaction from the electorate at the ballot box. And the risk that judges will be selected not because they are best qualified to impartially uphold the law but because they will best represent their ‘constituents'' views from the bench becomes increasingly real.

“Underlying the majority's opinion in White is a relatively simple and straightforward message: A state that opts to select its judges by election may not, consistent with the First Amendment, deny judicial candidates the opportunity to discuss what the election is about, and the election is in no small part about the issues those candidates will decide as judges. If a state is concerned that judicial candidates will compromise their impartiality when they take positions on issues that may come before them later as judges, it has an obvious solution, as emphasized by Justice Sandra Day O'Connor in her concurring opinion. It may select judges by means other than election.”

That solution may be obvious, but it's not easy. Arkansas elects its judges, as do most states, and a constitutional amendment would be needed to allow for some sort of process in which supposedly expert and impartial appointees would select judges. It's been tried before, and the people weren't buying. It could be tried again, but next year and for the foreseeable future, Arkansas will elect its judges.

When Arkansas lawyers fret about a politicized judiciary, they're likely to have Jim Johnson in mind. Johnson was a fire-breathing segregationist politician who made Orval Faubus seem moderate by comparison. In 1958, Johnson ran for the Supreme Court against Justice Minor Millwee, a member of the court since 1945. Johnson, now 83 and living at Conway, said that because of the illness of his mother, he campaigned for only about two weeks and made two telecasts. He doesn't remember the campaign as a “slugfest” — and Millwee apparently didn't do any slugging — but Johnson's definition of a slugfest isn't everyone's. His was not the typically bland Arkansas judicial campaign. An article in the June 29, 1958, Arkansas Gazette, headlined “Arch-segregationist Johnson/Trying for Bench This Time,” shows that the challenger didn't flinch from discussing issues, even, or especially, those likely to come before him in court. The article quotes Johnson as saying that “the legislature has proven that it will do what the people want on the segregation issue and governors are going to realize there is a mandate from the people of Arkansas to maintain separation of the races. I feel my election to the court will place that same feeling of responsibility on the judiciary.”

Politician and political scientist Cal Ledbetter later wrote of the Johnson-Millwee race:

“Johnson employed the same tactics used successfully by Faubus in his primary victory [for governor] alleging that he was to be the victim of powerful left-wing forces who had decreed his defeat and that the same gang who had defeated Faubus were now attempting to destroy him also.” Johnson picked many of the same targets that had been used by Faubus, including the Gazette, former governor Sid McMath and Henry Woods, McMath's law partner and former executive secretary. In a televised speech, an outraged Johnson said that Millwee had been guilty of telling a Dallas County audience that the United States Supreme Court was the final authority in all matters of law. He continued:

“The brazen statement made by Minor Millwee to the people of Dallas County is further proof that he is committed to the same political philosophy as McMath, Woods and Ashmore [Harry Ashmore, executive editor of the Gazette], who have long advocated one-world government. By serving as a flunky for these fuzzy-minded liberals, my opponent cannot render justice based upon the law … “ In his newspaper advertising and television appearances, Johnson emphasized that a vote for him was a vote for segregation, and a vote for Millwee was a vote for integration.

“Millwee,” Ledbetter wrote, “who was probably bewildered by the viciousness of Johnson's assault, continued to campaign in the traditional way for a Supreme Court position — refusing to answer charges made against him, refusing to indulge in personal attacks of his own, and running dignified advertisements, often featuring endorsements by lawyers, which stressed Millwee's record and experience.” The bar was strongly behind Millwee. Usually, that brings success in a judicial race, but Johnson won this one, by a narrow margin. He remained on the court until 1966, when he resigned to run for governor. He was not as bad a justice as his opponents expected.

In 1964, while still a justice, he made two statewide television speeches for Barry Goldwater, then the Republican presidential nominee. He says his political activities “far exceeded anything Griffen did on the bench.” But no one in the judicial branch of government ever said a word to him about those political activities. “The machinery may not have been as tuned in as it is now. Or the powers that be may have felt the same way I did.”

(When Griffen ran for the Supreme Court in 2004, another black judge, circuit Judge Marion A. Humphrey of Little Rock, asked the judicial discipline commission if he could endorse Griffen. The answer was no. Last month, Humphrey again asked if it was acceptable for judges to endorse political candidates. Again the answer was no.)

“I'm very concerned about whether the policing arm of the court has reached the point where it's an incumbent protective service,” Johnson said. “If a judge makes a decision, it's entitled to fair comment and criticism.” If people don't want that, then judges should be appointed, and removed from the political arena, he said.

Will pro-life and pro-choice judicial candidates face off next year? Will the Family Council and the ACLU be running advertisements for and against Supreme Court candidates? Probably not next year, a small survey of interested parties suggests. But down the road — who knows?

Circuit Judge Collins Kilgore of Little Rock, who'll be on the ballot, says he doesn't plan to change his own style of campaigning, and can't guess what an opponent might do. He thinks any change in judicial campaigning will be incremental — nothing drastic in 2008. Circuit Judge Vann Smith of Little Rock will be running too. “I think most judges will stick pretty close to the vest on what they say about issues,” he said. “But some questions are posed that candidates might feel more free to answer. The issue groups might be more forceful. In time, there might be a greater effect.” Asked for a preference, he said, “I personally don't think judges should talk about issues that are likely to come before them.” He might have added that the media too may become more forceful, now that judges can't hide behind the excuse that they're prohibited from talking about issues.

Chief Justice Jim Hannah of the Arkansas Supreme Court will be seeking another term also. The Arkansas canons of judicial conduct remain in effect, he said (even though some are unenforceable, according to the commission that would do the enforcing), and while they remain in effect, he'll abide by them. He said that an Arkansas Bar Association task force is studying possible changes in the canons. A draft is nearing completion and, in its current form, it would change Arkansas rules to conform with the federal court rulings — loosen limits on speech, in other words.

A dissenter in this, as in so many things, is Judge Griffen. He'll be running for re-election next year too, and he'll continue to talk about issues that he thinks are relevant, and that will let voters know what sort of person he is. He thinks other judicial candidates should do the same, and he thinks it “unfortunate and untrue” that some of them continue to say they can't talk about issues. Whether an opponent will match him in this regard, or run an old-fashioned judicial race, or try to use Griffen's own outspokenness against him, remains to be seen.

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