Arkansas circuit judge Wendell Griffen granted a temporary restraining order last week halting the Arkansas Department of Corrections from executing seven condemned prisoners within eleven days as it had planned, as Griffen barred the use of one of the ingredients in the lethal drug “cocktail.” A federal judge followed up quickly with anothee order likewise barring Arkansas from proceeding to execute anyone with a lethal injection. Mission accomplished, Judge Griffen decided to reward himself by attending an anti-death penalty rally in which he participated with elan, playing a condemned prisoner lying prone on a lawn chair as if it was a gurney.
What fun! And what an idiot! No ethics alarms went off, despite the fact that he was flagrantly displaying his bias against the death penalty immediately after interfering with the state’s law enforcement based on a fair and objective interpretation of the law.
State officials were outraged, and argued that Griffen’s conduct proved that he was not capable of impartiality in capital cases. Ya think?
Yesterday the Arkansas Supreme Court pulled Griffen from all pending death penalty and lethal injection protocol cases. It also referred him to the state’s Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct.
The court said, as it removed him:
“Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and confidence.” Ark. Code Judicial Conduct, Preamble…
To protect the integrity of the judicial system this court has a duty to ensure that all are given a fair and impartial tribunal. We find it necessary to immediately reassign all cases in the Fifth Division that involve the death penalty or the state’s execution protocol, whether civil or criminal”
All jurisdictions have similar judicial ethics requirements. How could Griffen have not realized that his stunt would undermine the integrity of his decision as well as the judiciary?
No doubt he was influenced by politicians of both parties years long representation of all judicial rulings as political rather than impartial, exemplified by Democrats recent savaging of now Supreme Court Justice Neil Gorsuch, despite the fact that he said he would comfortably issue opinions that varied from his personal policy beliefs. Every judge should strive for that standard, but it is an open question how many do. James Robart, the “so-called judge” who first stopped the Trump temporary halt on travel from seven Muslim countries deemed a terrorism risk, had taken on many pro bono representation of Asian immigrants as a lawyer and had said during his confirmation hearing that he regarded the law as a way to help people who feel they’ve been wronged, or that have the odds unfairly stacked against them. I would hold that such a philosophy disqualifies him for the bench, but that’s how progressives believe judges should view their role.
The role models for the judiciary haven’t been much better. Both the late Justice Scalia and Justice Ginsberg have prominently supported partisan positions and organizations, though not those involved in pending cases. The public should be able to trust that a judge can oppose abortion, for example, and still follow the law to uphold abortion. If judges are going to openly proclaim political and partisan bias and rule as their demonstrated biases command, we might as well start electing all of them.
Of course, if cases are decided on biases rather than the law, cases and precedent, judicial ethics are a sham.
- On the comment thread on the Volokh Conspiracy article that told the story of Griffen’s “I’m biased and proud of it” display, one commenter asked,
“Should a judge who opposes abortion (for whatever reason) be permitted to conduct a hearing with respect to a minor seeking an abortion?”
The answer is “Sure, if he honestly can say that his policy views won’t effect how he interprets the law, and sincerely believes he can rule contrary to his personal beliefs, as any ethical and competent judge should.”
- Question: if the judge took part in the demonstration after he had refused to halt the executions, would that have been unethical?
I would still say yes, because many members of the public would interpret the gesture as proof the the judge was a hypocrite, though in fact it would be a sign of integrity.
Facts: The Volokh Conspiracy