Judge Wendell L. Griffen in Arkansas thinks that the war in Iraq is a mistake, and he is not bashful about saying so. Of course, he does so off the bench. But even so, his comments have him up to his ears in hot water. The comments breed lack of confidence in the impartiality of the bench, regulators say. He may face suspension by the state's Judicial Discipline and Disability Committee.
Well, what is he supposed to talk about when he appears before voters?
The convention among judges seeking election by voters or appointment by lawmakers is not to discuss how they would vote on an issue that may appear before them. This dumbing-down of the debate leaves little to discuss. National policy issues seem like a promising topic.
The Supreme Court has held the door ajar for judges to speak out when facing election. "If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges," noted Sandra Day O'Connor in her concurrence in Republican Party of Minnesota v. White. Under White, judicial candidates in popular elections retain the right to speak out on disputed legal and political questions.
Even so, I concede that Judge Griffen's comments might give pause to a staucn Republican appearing before the judge. Will the jurist use his discretion to abuse a person on the other side of a partisan line? There is always the danger of that appearing so.
In striking the balance between speech and an independent judiciary, the states would be wise simply to cease the popular election of judges. I realize that muzzles judges, and that is to be regreted. But it is a far worse thing to have judges pandering to the latest surge in public opinion. Lawmakers come and go with changes in passion; the judiciary, classical republicanism tells us, embodies something more endearing.