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Silencing a judge 

When is talking about and promoting morality in public life not a good thing? When you are African-American and a judge and your notion of morality has a little too much social context, like the teachings of Jesus.

That is the subtext of the endless campaign to oust Judge Wendell Griffen of the Arkansas Court of Appeals. In a few weeks, the second effort by the state Judicial Discipline and Disability Commission and its director to punish the judge for a few nonjudicial utterances that got into the public prints the past dozen years will finally produce sanctions against him once more. That is a safe assumption because a narrow majority of the commission brought charges against him and presumably will uphold itself after a hearing. The sanction will be hanging over him when he runs for re-election next year because the Supreme Court will not have acted on his appeal by then. The commission’s long delays see to that.

The first sanction, which was imposed in 2002 after he told black lawmakers that racial discrimination was still evident at his alma mater, the University of Arkansas, was overturned by the Arkansas Supreme Court, which said the reprimand abrogated Griffen’s free-speech rights. The Bill of Rights and the Arkansas Constitution say that the government cannot punish a person for expressing his or her ideas, and the conservative majority on the U.S. Supreme Court said that protection extended to judges.

But not to Wendell Griffen, contend the commission and its executive director, James A. Badami. Some of his remarks on the issues of the day that were reported from time to time in the Arkansas Democrat-Gazette and in a little Georgia newspaper, they say, destroy public confidence in the judge’s ability to rule impartially.

Badami contends that someone who is involved in a lawsuit that reaches the Court of Appeals and who has read Griffen’s comment on some subject with which the person disagrees might decide that Griffen would rule against him because of his or her opposing views on that subject, if somehow Griffen knew about the person’s views.

Here are the commission’s examples and you judge whether that is apt to be the case. (Judge Griffen is also a clergyman whose ideas about public morality can be heard some Sunday mornings at the Emanuel Baptist Church at Little Rock.)

• At a conference of the NAACP, Griffen criticized the government response to Hurricane Katrina as a great moral failing, suggesting that race and class discrimination were behind the government’s failures.

• At a news conference of ministers of several faiths supporting an increase in the state minimum wage as a Christian duty, one of the statements released was by Griffen.

• At a meeting of progressives at the St. Paul’s Episcopal Church at Fayetteville last year, where he was invited to speak about morality in public life, Griffen criticized the war in Iraq and widespread attacks on gays and immigrants during the election campaign. His text was Jesus’ story of the Good Samaritan, which suggested that everyone was a neighbor who deserved kindness. “So I keep asking myself, are we neighbors yet?” the paper quoted him as saying.

• At a conference in Georgia of the National Baptist Convention USA, of which he was an officer, he criticized the legal philosophy of John Roberts, who had been nominated to the U. S. Supreme Court. His views were mentioned in the Columbia (Ga.) Ledger-Leader.

• In an article in the Arkansas Times, he took issue with an op-ed article in The New York Times about privacy protections in the Constitution.

So here is the terrible scenario that Badami envisions: Someone who thinks the government did a good job after Hurricane Katrina finds himself in a contract dispute that reaches a panel of the Court of Appeals where Griffen will be one of the judges. Knowing that Griffen disagrees with him on Katrina, he will lose faith in the court to rule impartially.

If that is a compelling argument, it applies to virtually every member of the Arkansas Supreme Court, who had lives, often political careers and sometimes passionately held beliefs on public issues before they went on the high court. Justice Steele Hays, a particularly distinguished judge who is now retired, was the leading exponent of abolishing the death penalty before he went on the Supreme Court, engaging in public debates about it. Knowledge of that position and on others like equal justice was a reason that many voted for him. Hays sat on scores of death cases with never a hint of partiality.

Is there some magic in refraining from any public discussion of issues that are not before the court after you become a judge that protects your independence?

The theory behind sanctioning Judge Griffen is that the best judging comes from men and women whose views on everything are never known to the public that votes them into office. Second best is a judge whose views on nonjudicial matters, which may still be just as strong, are just not uttered after he takes the bench.

But that does nothing to guarantee an independent judiciary. The best predictor of how a judge will rule on a particular case — and it thankfully is not absolute — is the kind of practice that a lawyer had before he became a judge. One longtime Supreme Court justice never ruled against an insurance company.

Independence is a value held by an individual, and it is not corrupted by the expression of ideas or preserved by silence.

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