Judging Free Speech

Are judges permitted to express their opinions, or do they shed their First Amendment rights when they don a robe? Adam Liptak calls attention to a disciplinary proceeding against Arkansas Judge Wendell Griffen, who may lose his job (or at least face a suspension) because he made a speech that criticized the president’s decision to wage war with Iraq.

Last month, the commission voted to hold a hearing in the matter, saying there is probable cause to believe that Judge Griffen had damaged public confidence in the integrity and impartiality of the judiciary. In an interview, James A. Badami, the commission’s executive director, elaborated. “If you are a staunch Republican and a Bush supporter and have to come before this judge,” Mr. Badami said, sounding exasperated, “and this judge has now said some terrible things about Bush and the Bush administration — and now those people are having to appear before him?”

Here’s a better question: when a judge issues campaign promises to be “tough on crime” by making sure that offenders stay behind bars, touts her past experience as a “law and order prosecutor,” and trumpets her endorsement by law enforcement officers across the state, how will someone who is accused of a crime feel about having to appear before the judge? After all, the judge will rarely know whether a party appearing in court is a Republican or Democrat, but the judge will surely know that the party is on the wrong side of criminal prosecution. Isn’t there a greater risk of partiality when the judge has made campaign statements suggesting that she will favor the prosecution over the defense and will follow a uniformly harsh sentencing policy rather than tailoring sentences to the specific offender?

The larger question that Liptak asks is whether it makes sense to elect judges, a process that forces judges to collect money from lawyers, the business community, and anyone else who hopes to curry favor with the court. Here's a look at one ugly campaign, a look at fundraising in Pennsylvania, and a critique of special interest influence on judicial campaigns.

One last question: Would Judge Griffen have been in trouble if he'd praised Bush? Might the political leanings of the members of the Discipline Commission have something to do with this complaint?

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    my father is a judge (none / 0) (#1)
    by chicago dyke on Mon Apr 16, 2007 at 06:59:11 PM EST
    as are other members of my family, and i'm sorry to say it, but it's a "good ole boys" club that in some places happens to have the occasional woman or person of color. discipline among judges is almost always deeply political. that is, politics that are concerned with the local/judges level- what matters to officers of a particular local court system.  you won't hear about the real reasons a disciplinary panel is taking action against one of its own very often. this case sounds about right to me: some judge isn't going along with the rest of the country club/golf/nooner mindset that is so typical in judges, so he gets in trouble for not keeping his mouth shut.

    really, my experience watching dad and all his judge friends "discipline" each other taught me to be very cautious before extending respect to someone just because they wear a robe. and then there was the night the county sheriff, the district attorney, my dad and some other high ranking court officers got drunk and...no, i can't go there. this is a lawyers blog, so you all know what i'm talking about.

    orionATL (none / 0) (#2)
    by orionATL on Mon Apr 16, 2007 at 08:40:52 PM EST
    the issue with judge wendell griffen is not free speech;

    to focus on that misses the point.

    the issue is quite clearly that griffen is facing fake "ethics/professionalism" charges

    as a consequence  of his comments about the president.

    to properly understand or comment on this case,

    it is only necessary to know the political affiliations and political ambitions of those bringing charges against the judge.

    though it is fine here at a weblog,

    generally speaking,

    talking about free speech

    trivializes what is in fact an explicit attempt to punish a judge for having made a political comment other disapprove of

    by attacking him in the professional realm.

    this kind of suppression of speech should not have been worthy even of a hearing.

    and absolutely must be called what it is:

    retaliation for political speech.