Columns » Max Brantley

Partisan justice

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I had a nice visit with Arkansas Court of Appeals Judge Rhonda Wood last week.

She and I had engaged earlier in a little Twitter jousting over some of her political activities.

Wood had mentioned on both Twitter and Facebook her enthusiastic attendance at two Republican Party fund-raising events, including a speech by gubernatorial candidate Asa Hutchinson, as well as a speech at the University of Arkansas by Wisconsin's Republican governor, Scott Walker.

I was interested for several reasons.

For one thing, Wood was just elected to the Court of Appeals, but the public appearances lent credence to the reports that she was planning a race for an open seat on the Arkansas Supreme Court. Judges can't formally begin campaigns until one year before the May 21, 2014 election, but they can certainly begin pressing the flesh.

For another thing, there was the matter of her attendance at Republican-flavored events. In her first race for Court of Appeals in 2010, Wood relied on robocalling by former Gov. Mike Huckabee to target voters. His message noted she'd been recommended for the bench by a Republican Party committee. Arkansas judicial elections switched from partisan to nonpartisan in 2000. Judicial ethics rules prohibit judicial candidates from claiming a connection to a political party (which Wood didn't explicitly do).

Wood, a former staff member for Huckabee, would be the last to claim anyone brings perfect neutrality to the bench. And, much as I have come to believe "merit selection" is the best course for filling judgeships, I also know that an appointment process inevitably will have political overtones, too.

Wood insists her record in Faulkner County illustrates fairness in handling cases involving political party figures. She says her recent attendance at Republican activities was mostly happenstance — that she'd be happy to attend Democratic Party events, too. (Noted in passing: She spoke of the "Democrat" Party, a subtle Republican putdown long used by GOP partisans.) She agrees that judicial engagement in social media can be problematic, but that she avoids statements on issues or beliefs. She defended her attendance at the Scott Walker event on the ground that she's a native of Wisconsin.

Wood lamented — as did several of her Republican legislative admirers, such as Sen. Michael Lamoureux — that the first round of judicial elections are held the same day as political party primaries, when partisan coloration is rampant. Better to have the election in November, they think.

Maybe it's all innocent. But a partisan-seasoned dog whistle can be a plus, particularly if you believe Arkansas is strongly trending Republican. It is the same sort of dog whistle heard in Wood's pronouncement that she is a "conservative" judge. Voters inevitably read that label as politically conservative, as opposed to, say, judicially conservative. A real judicial conservative is respectful of precedent (Roe v. Wade, for example; or the decades-long precedent, overturned not long ago by nominal "conservatives," that the 2nd Amendment should be read in context of the need for a militia).

I agree with Circuit Judge Wendell Griffen, a Democratic partisan who speaks more than a judge should on matters of public controversy, that he, Wood and any judge enjoy nearly unbridled 1st Amendment protection from government punishment for speaking their minds, even exhibiting friendliness toward a political party. But just because you can speak freely, doesn't mean you should.

Republicans who lobbied in 2000 for nonpartisan judges (to deprive the Democratic Party of the filing fees that then flowed overwhelming in that direction), plus nonpartisan prosecutors (passed this session) and even nonpartisan sheriffs (failed this year) in the name of a pure justice system, should shut their hypocritical pieholes if they also approve of partisan-tinged politicking by one of their own.

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