When Judge Wendell Griffen of the state Court of Appeals dared to run to be the first black justice of the Supreme Court, he should have guessed that a good old-fashioned lynching was in store.
We are much too civil now to undertake the literal kind, but trumping up accusa-tions of wrongdoing has the same figurative result. The slim chance that a black man could be elected to the Arkansas Supreme Court in 2006 vanished last week when the state newspaper rolled out a front-page story of a many-months-old complaint (reported by the Arkansas Times March 9) about the judge under the charged headline, “Griffen at risk of impeachment.”
Judge Griffen is not at risk of impeachment, which every careful reader of the long continuation of the story inside discovered. No one is petitioning the Arkansas House of Representatives to impeach him, nor will they.
The judge’s anonymous foes, whoever they are, lodged complaints with the state Judicial Discipline and Disability Commission that Griffen had uttered unflattering words about President Bush and Vice President Cheney — imagine that! — at an NAACP meeting and pungently criticized the treatment of Hurricane Katrina victims.
Another letter to the commission, which it is seriously investigating, said Griffen should be removed because his published remarks indicated that he would not treat white people fairly although Griffen’s 10 years on the bench and six on an administrative tribunal for worker injuries bear witness to the terrible untruthfulness of the charge. The commission’s executive director says he is also looking into an anonymously reported e-mail asking for financial support for the Supreme Court campaign, which he said might under the right conditions be unethical.
All that, you see, is supposed to violate Arkansas judicial rules that judges should not speak out or do anything that would cause people to doubt the independence and impartiality of the court. The U.S. Supreme Court and the 8th Circuit Court of Appeals, whose precedents Arkansas is obliged to follow, have said flatly that all such rules that restrict the speech of judges and candidates for the bench run afoul of the First Amendment. Freedom of expression is a birthright of everyone in the United States — Klansmen, cranks, Nazis and, it turns out, even judges.
Even clearer is the Arkansas Constitution’s declaration of rights. “All persons,” it says, are entitled to “the free communication of thoughts and opinions.”
The only exception is an opinionated black man running for the Supreme Court.
Griffen is a Baptist minister and a leader of the Baptist National Convention, both of which you would think give him a portfolio to speak on the moral questions of the times. But if his words happen to get in the paper, he has dishonored the robes that he dons the next day.
It was the Minnesota Republican Party, oddly enough, that brought the federal suit to liberate judicial candidates in the 32 states that elect some of their judges, and it was the conservative faction on the U.S. Supreme Court that said freedom of speech overrode the states’ prerogative to prescribe how they pick judges.
The Democrat-Gazette’s front-page story was followed quickly and predictably by another in a long line of full-dress editorials condemning Judge Griffen in the sneering and condescending tone that it reserves especially for black leaders. “There he goes again,” the editorial headline read, although the ideas that the paper found so offending occurred and were reported long ago. The editor said Griffen’s comments on issues of the day sullied the dignity of the court and the law.
It was not as if Griffen were staking out positions on issues that were before the Supreme Court or his Court of Appeals or issues likely one day to arrive there. Un-like the sainted Justice Antonin Scalia, so adored by the Democrat-Gazette editors, or a white candidate for another seat on the Arkansas Supreme Court this spring, Griffen refuses to discuss questions that might reach the court, although the U.S. Supreme Court said that kind of speech is protected, too. By the way, no complaints have been lodged against the white guy and no one is talking of impeaching Scalia.
Neither has anyone protested down the long judicial history when Arkansas judges spoke out on the issues of the day. Supreme Court Justice Carroll D. Wood in 1904 engaged Gov. Jeff Davis in perhaps the most vituperative campaign in Arkansas history — he took a bloody pounding from Davis’ goldheaded cane at Hope after a particularly rowdy exchange. After the campaign, Justice Wood returned to the courtroom for another 25 years,
Judge Francis Cherry postponed court for a couple of months in 1952 so that he could run for governor. He took a stand on every issue anyone could think of, legal and otherwise, in a series of marathon radio talkfests across the state. Then he returned to the bench and ruled squarely until it came time for him to be sworn in as governor the next year. No one accused him of sullying the law or the court. The same with Judge (then Gov.) J. Marion Futrell in 1932 and Judge Lee Ward, who left the courtroom in the summer of 1958 to take on Gov. Orval Faubus for his efforts to stop school integregation. At the end of the day, despite their hearty political speech, every one was regarded as a jurist of unusual dignity and principle.
But they were white.