Must judges talk? 

Well, justice was done. Arkansas Court of Appeals Judge Wendell Griffen was found “innocent” by the Supreme Court Committee that disciplines Arkansas's judges. Based on a new case out of Texas, and another pertinent Minnesota decision, the three-person panel declared that he should not have been called down for speaking in public on topics of public interest.

Now, we lawyers will watch the aftermath with interest. Conventional wisdom on the legal street is that Judge Griffen is daring to be taken on at the polls when he runs for re-election next year. One very strong candidate has declared and she has already volunteered that she is going to follow the relevant canons of judicial conduct under which Griffen was charged. But when you are on a mission, you could care less. Remember your last mission? I had everything but Mighty Mouse tights on.

So, is the judge right in generating the publicity he does? The answer depends on your right thinking. Could he be right about free speech (and he is), but wrong on an absolute scale? Just because he now has the right to gather a crowd and speak on social issues, should he? My opinion: “No”... most lawyers do not want judges out there in a high visibility posture, pontificating, even with the eloquence of a Baptist preacher (and he is a fine one). I want my judge to be insightful and fair and especially courteous and generally “above it all.” None of those traits call up the vision of one with a burning passion, or worse, a “hotdog.”

As I appreciate the purpose of the restrictive judicial canon in question, we want to go to extremes to maintain the appearance of impartiality and propriety. If America ever reached a time when the judge you drew had prejudices or inclinations known to all, there would be no perception by lawyer or lay person of a fair system of justice. While this judge has punctuated the fact that he has never spoken on any topic that may come before his court, that fact is too shallow to stop there. From our raising we all have our leanings, and sometimes we can get cranky. But if you are my judge, at least try not to be mean to the lawyer or litigant, and try to keep your mouth shut and “act like a judge.” If you need to act like a clown, that is your right but don't be a clown judge.

I promise you, most lawyers with their clients would love to know of a judge's opinions on serious contemporary topics of society and morals. For example, when you Google one judge you might find in the future that he rails against the welfare state, the wasteful government systems and the obscene transfer of wealth via government benefits and estate taxes. The other speaks of the disappearance of the compassionate state and the withering of the inherent goodness of man that comes to the rescue of his fellow man. Question: If you have the “little guy” in a legal fray, which judge must you conclude will more likely give your client a fair day in court? When you draw the other one, how might your client feel about the system?

Judge Griffen has a reputation and is admired for an eloquence in speaking his mind. For taking on the powers. For expressing his deepest feelings in both his present and historical reflection of the fight for racial equality (while he is African-American, no one has suggested that race was a factor). He fought this disciplinary committee with vengeance. He really had no option. And he won. We lawyers all admire anyone for taking on and whipping his adversary. But I am not at all sure that his win was not Pyrrhic victory. He injures one of our systems to make his point about free speech.

There was a small country church whose pastor was inviting the members down to the front on Sunday to “Tell it all, Brother.” Several came down and testified, and repented, with the pastor's “Tell it all, Brother” encouragement. However, when Farmer Simpson came down to declare his honest attraction to the nannies out back, the pastor quickly spoke up, “I don't think I'da told that, Brother.”

Judge Griffen is on a mission, and it is going to be, regrettably, politically entertaining. He and I just disagree on whether he should willingly forego his need to talk in public, in a balancing of the elusively inimitable “greater good.” Judges need to hush.

Robert Trammell is a Little Rock lawyer.



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