Comment Of The Day: “Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen”

The post about the absurd Arkansas judge who saw nothing wrong with taking part in some anti-death penalty protest theater shortly after halting some scheduled executions. Can we say “objectivity”? Sure we can!

The impetus for Steve-O-in NJ’s Comment of the Day was what could be called dicta in the original post about the dubious role models for judicial conduct currently sitting on the U.S. Supreme Court.

Here is Steve-O-in-NJ’s Comment of the Day on the post, Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen:

I agree that SCOTUS needs an ethics code, but, in all fairness, did Eisenhower, Kennedy, Johnson, or Nixon ever attack the SCOTUS or a decision in a speech or an address? FDR was far more politically powerful than Obama ever could hope to be, but even he knew when to back off the SCOTUS. That said, I wonder if he knew from the get-go he was going to break the 2-term tradition and just wait the court out, as justices either died or retired and he replaced them with like-minded judges.

What do you think of an age limit for Federal judges, setting either 70 or 75 as a mandatory retirement age? Although Article III judges serve for the term of their good behavior, arguably that Article didn’t conceive of Federal Judges living well past 70 regularly and living and serving into their 80s and 90s uncommon but now certainly not unheard of. If we can revisit Presidential terms of office, which we already have, if we can revisit the Electoral College, which we already have once and some are asking us to again, and if many vocally want us to revisit both the First and especially the Second Amendments, all of these due to changing circumstances (breach of the 2-term custom, the emergence of political parties, alleged hate speech, and the evolution of firearms beyond single shot muskets) then arguably we can revisit Article III as well.

I’m not naïve enough to believe that wouldn’t create its own set of problems with pension issues, talented but older judges turning down appointments that they wouldn’t get to spend much time in before they had to retire, and chess-piece judge appointments and promotions in the hopes of positioning someone near retirement so that a key slot would open sooner rather than later. However, I think that is preferable to permitting judges and justices in declining physical and mental health to remain on the bench in the hopes of holding on for just long enough for the White House to flip and ensure their landmark decisions aren’t disturbed.

Does anyone here think that Harry Blackmun stayed on the SCOTUS until he was 86 simply because he enjoyed his work? Does anyone think that William O. Douglas stayed until he was 75 and disabled by a stroke (and even then had to be persuaded by fellow Justice Fortas to step down) because he was just that devoted to public service? Does anyone think Antonin Scalia, 79 and suffering from hypertension, diabetes, and a myriad of other issues that come with being that old and not taking care of yourself, who had earlier said he hoped NOT to be on the Court all his life, stayed till the Grim Reaper came for him for any reason other than he didn’t want Obama to appoint his successor? Raise your left hand if you really and honestly think Ruth Bader Ginsburg, 84 and a cancer survivor who has trouble staying awake, is still on the court for any other reason than she knows if she goes now, the Court tilts right for a generation.

The fact is that a lot of judges and justices at the Federal level are guilty of the sin of pride, and just can’t stand the thought that someone else might come along who saw things differently than they did, and what they thought was their careful carving into the marble face of time would turn out just to be footprints in the sand, that a subsequent tide would wash away. It’s time to remind the judges that they, like all other folks who don’t wear a black robe, are human, and subject to the vagaries and changes of history as much as anyone else. They shouldn’t try to change that verdict.


Filed under Comment of the Day, Government & Politics, Law & Law Enforcement, Professions

11 responses to “Comment Of The Day: “Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen”

  1. I am in agreement. I think that same limit should apply to the POTUS and other key positions as well. Considering the three major candidates in the last race were two septuagenarians and one octogenarian. I remember well Reagan’s failing mental state too. I would also like to see some minimum test of intelligence and knowledge of world history, government, science and yes, ethics. Mental health evaluations might be nice too, but they’d either be rubberstamped or no one would qualify. I’m firmly convinced anyone who would seek these key positions, especially POTUS, would have to be narcissistic at the least and a megalomaniac in many cases. There is a reason the best and brightest have politely declined to run….they’re not insane enough to do that to themselves and their family.

    • valkygrrl

      The problem is that the prerequisites for president are defined in the constitution and anything above and beyond those have to be decided by voters, not set by federal statute*. If you could get an amendment then who would you trust to decide what the tests are and what constitutes passing, are the the same people the other party would trust?

      *There is a line of thinking that states can add requirements for ballot access but with your example, you’d have to see a candidate sit for 50 different tests in 50 states. No matter how well you knew the material, tell me you weren’t really drained by the end of finals week when you were in school, then make it 50 exams and add in travel.

  2. Wayne

    Uncertain about this one. Scalia remained a wise Supreme Court Justice until he kicked the bucket. Presidents have died in office much younger I.e President Harding. We have had much younger Supreme Court Justices who were mediocre at best.

    • Wayne

      Come to think of it a mandatory retirement age sound like some FDR would come up with. And look what happened to him in his fourth term!

      • Yeah, I don’t think a “quit when you know you’re going to die in a few months” requirement is unreasonable…

        • Inquiring Mind

          The only way for that to work would be to make the seats on the Supreme Court less of a high-stakes battle every time one opens up.

          Fat chance of that happening.

          • Matthew B

            The reason judges have become so important, so powerful, is judicial activism. If judges stayed in their roll and didn’t act as unelected legislators, then their appointments wouldn’t be so political.

            As you noted Fat chance of that happening

  3. Emily

    This might seem nitpicky, but…
    “Although Article III judges serve for the term of their good behavior, arguably that Article didn’t conceive of Federal Judges living well past 70 regularly and living and serving into their 80s and 90s uncommon but now certainly not unheard of.”

    Actually, they probably did at least conceive of it. The average life expectancy hasn’t changed that much in over three hundred years, once you get past the big bumps of infant mortality, childhood illness, and death in childbirth or workplace accidents.

    That means that if someone lived until they were, say, fifty, and no longer in much danger of any of those, they could expect to live about as long as anyone today.

    Now, the elderly might have slowed down a lot more back then. Life was harder in a lot of ways, and moving to live with children or staying in your nice comfortable house might have been a lot more appealing. But if they were determined, they probably had just as much potential time as justices today.

  4. Matthew B

    We can look to Oregon for a gauge of how the public feels about mandatory judicial retirement.

    From Ballotpedia

    The Oregon Legislature referred to voters an amendment establishing a mandatory judicial retirement age of 75 in 1960. Known as Measure 9, voters overwhelmingly approved the measure. In 2016, 56 years after Measure 9, the legislature referred Measure 94 to the ballot, asking voters to repeal the mandatory retirement age for judges. It was defeated..,_Measure_94_(2016)

    The vote wasn’t even close, losing 63%/37%.

    • Except that 1) the Oregon public is so extreme that it is not a good measure, and 2)this is a great example of where the public is so ill-informed that its opinion is worthless.

      • Steve-O-in-NJ

        The NJ Constitution sets the mandatory retirement age for all judges at 70. An attempt to up it to 75 in 2014 flopped with voters. AZ, NY, PA, FL, MN and MD all have mandatory retirement ages for some or all of their judges. The NY judges actually sued to try to up the minimum retirement age. They lost.

        Empirically it appears that the American public generally, or a good portion of it, does not like the idea of judges remaining on the bench until either they themselves decide or God/fate decides that it is time for them to go. The idea of anyone remaining in officer forever and accountable to almost no one is, I think, repulsive in a nation that specifically broke away from the monarchical tradition, where kings were God’s anointed and to resist their will was to challenge God and therefore sinful.

        I think the idea is further repulsive because judges, and especially the Supreme Court, particularly as appointed by FDR, have too often taken it upon themselves to rewrite the law and behaved as though they know more about policing than the police, more about corrections than the wardens and corrections officers, more about hiring than CEOs, and so on.

        John Grisham wasn’t too far from reality when he created a curmudgeonly liberal Justice Abe Rosenberg who was “91, paralyzed, strapped in a wheelchair and hooked to oxygen” and said “His ideology was simple, government over business, the individual over government, the environment over everything. And the Indians? Give them whatever they want” who wrote a ridiculous opinion that freed the brutal rapist and murderer of a young girl and “dissents just for the hell of it.”

        This isn’t what the judiciary is supposed to be about, and capping the age of jurists before they can go soft in the head, or dissent just because they can, or become obstructionist is one way to keep it from getting there.

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