Allow us a question about the state Supreme Court race and any cases that might come before the courts concerning guns:
Will the candidate making a spectacle of himself, and advertising his membership in the NRA, ever be able to rule on these matters? For he's signaled his preferences during the election and might have to recuse later.
"Have to recuse" might be overstating it. "Should" recuse.
Oh, what a tangled web judicial candidates weave when they pre-judge issues and campaign on political matters. For years, for decades, we've interviewed candidates running for judge or justice, and it's the oddest thing. Nearly every time we'll ask about judicial philosophy or temperament and then tip-toe too close to the political line. And the candidate will say, "Why, that's a good question, but I can't answer it. I'd have to recuse if that ever came up in my court."
One of the three candidates for state Supreme Court justice this year might not understand. He's running ads featuring a mantra: Family Man, NRA Member. It's becoming as familiar a refrain as another TV advertisement from years past: Martha Raye, Denture Wearer.
Should this candidate be elected, would he be able to consider any gun cases before the state's highest court? Lord knows there could be a bevy of them. There has been legislation, and talk of legislation, to allow guns at football games, in hospitals, and even whether to allow teachers to carry them. In the coming years, the Supreme Court of Arkansas might be down one player in its rulings, if the person in question plays by the familiar rules.
Which is the rub. Would he?
For the (murky) answer, we turn to an essay by Bob Brown--excuse us, Mr. Justice Robert L. Brown, retired. He wrote something for UALR's law review on recusals and Arkansas law a while back. Lawyers in town tell us that Mr. Justice Brown has forgotten more about recusals than several inky wretches will ever be able to learn.
The answer to our question is murky because this state's citizens should be able to count on impartial judges hearing their cases. Then again, higher authorities say judges have a First Amendment right to speak, as do all citizens. So there's a delicate balance that must be respected.
To quote His Honor Robert L. Brown, or at least his essay, and the Arkansas law he quotes himself: "A judge's public statements may result in his or her disqualification. Rule 2.11 of the Arkansas Code of Judicial Conduct addresses statements by judges on public issues and mandates judicial disqualification when: 'the judge, while a judge or judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy."
So if a candidate for the bench comes out publicly against abortion or the death penalty, he might be asked to voluntarily step aside on any abortion or death penalty cases. (Where have we heard that before?) Or if a candidate advertises that he's a member of, say, the NRA, he might be asked to voluntarily step aside on gun cases. Voluntarily, we note, because recusal is up to the individual judge, and if a judge refuses, there is little recourse for those bringing a complaint.
As Robert Brown's essay notes, "The current Arkansas Code of Judicial Conduct rule (Rule 4.1) . . . requires a judicial candidate merely to 'consider' the impact of the judge's announced views on his or her role as judge rather than refrain from making the statements about those views altogether."
Which might mean We the People should be able to rely not on the letter of the law(s), but on the restraint, judicial and judicious restraint, by those who'd run for judge and justice.
And the candidate in question in this case just doesn't have it. What he does have, instead, is air time to disqualify himself from the issues he's promoting.
Which is another reason we're glad to endorse Judge Kenneth Hixson in Tuesday's primary. Let's vote.
Editorial on 05/18/2018