Brill Speaks! Part 3

This is the third part of our interview with Professor Howard Brill of the University of Arkansas School of Law, who was appointed Brill to be the Chief Justice of the Supreme Court of Arkansas in 2016. Dan Greenberg interviewed Bill in 2017. The previous post discussed Brill’s impression of how the Arkansas court system works, how judges deal with ambiguity in the law, and opinion-writing. Today’s portion of the interview begins with a discussion of the role of the Arkansas Bar Association in the state’s legal system:
GREENBERG: So, I’m curious. Explain a little bit more about your conversation with Denise Hoggard that you alluded to in that first interview [with Ernie Dumas]. And the question I sent you about that was, say a little something about the proper role of the Bar Association with respect to the administration of justice, and whether what you were talking about was more a symbolic issue or a substantive issue, or both.

BRILL: I believe that the rift that has developed between the Supreme Court and the Bar Association is unfortunate. I think the Arkansas Bar Association has played and should continue to play a close role in the justice system and the legal system in Arkansas. When I was sworn in at my investiture, I asked the President of the Bar Association to attend and to say a few words on behalf of the Bar Association.

So, I think it is symbolic, but I also think it’s substantive. Over the last 50 years or so, the Bar Association has been a partner with the Court in such things as Access to Justice, and JLAP, and similar types of changes and reforms. I think, probably, if we went back to Amendment 80, the Bar Association and the Courts, that was sort of a joint undertaking. I think that the Bar Association can continue to play that sort of role, supporting the Courts, and should play that type of role. I am a strong supporter of the Arkansas Bar Association, and the role it has played in supporting the courts. And I hope the rift is restored.

GREENBERG: So, I take it that there were some people who decided, essentially, “We don’t want the Bar Association involved in the investiture.”

GREENBERG: And I appreciate that a) you have to be diplomatic about this, and b) you can’t read anybody’s mind, but explain a little bit more about why that decision was made, or what the meaning of that decision was, or something, because I’m just, I’m baffled. I mean, I’m looking at this as an outsider, and I don’t quite understand the symbolic weight that people are giving to it, on either side.

BRILL: There may have been factors that started long before I went on the Court, factors where one or two members of the Court were dismayed with the Bar Association or dismayed with stands the Bar Association had taken. But, in 2016, the Bar Association had a task force to look into the election of judges, and that task force recommended that appellate judges be appointed. That recommendation was not received well by some members of the Court, and it’s a matter of public record that a majority of the Court appointed a committee to look into reforming, or improving, or modifying the election of judges.

Because the recommendation for appointment was not well received, it probably strengthened the feeling of some justices that because the Bar Association is a private entity and a voluntary organization, there should be a clear separation between the Arkansas Supreme Court and the Arkansas Bar Association. And one way to have that clear separation is to say to the Bar Association, “You no longer should be involved in the swearing in of new lawyers.”
GREENBERG: So, you know, one way to look at this, as I understand it, or my simplistic understanding of the situation, is that when you had the Bar Association involved in the investiture, that makes the Bar Association kind of part of creating the legitimacy of the Supreme Court, and that the ending of that sort of creates a separation that has its own symbolic meaning, which is, the Court’s separate from the Bar Association.

BRILL: Yes. The courts and the Bar Association are two separate organizations, but they have worked together for decades.

GREENBERG: And so, is that kind of the root of it, that there’s kind of a difference of opinion as to how integral the Bar Association should be to the operations of the Supreme Court justice system?
BRILL: Yes. I believe that a majority of the Court believed that it should be made obvious that the Bar Association is separate from the Supreme Court. The statement might also have been made that there are other Bar Associations, and just because this one is the Arkansas Bar Association, it should not have the privilege of being involved in an official ceremony from the Arkansas Supreme Court. And my answer to these concerns was that the Arkansas Bar Association is the only the bar association for the entire state, and it plays a role in supporting the legal profession in the Courts, and it should continue to do that.

GREENBERG: Fair enough. So, changing the subject, I think that the first time you mentioned Governor Hutchinson in your earlier interview, that was when you got a phone call from his office.


GREENBERG: I’m curious. Would you care to say something about your relationship with Asa Hutchinson that predated that, if there was one? I don’t want to presume.

BRILL: I have known Asa in a very general sort of way for 35 years, and I’ll give you some specific examples of that.

Before he went to Congress, I was an expert witness for him in a case, and I think, the next year, I was an expert witness against him in a case. So, I have told people, I have been examined by the Governor and cross-examined by the Governor.

When he was in Congress, his Chief of Staff was a former student of mine, and the Chief of Staff would call with some questions in regard to the impeachment and the discipline of lawyers. And he would call on behalf of the Congressman, and I would have conversations and discussions.

I taught the Governor’s son, Asa III, in law school, and my son, Christian, worked in Asa’s office on Capitol Hill for two and a half years.


BRILL: So, I’ve had that sort of connection with him. I’ve always admired him, I think he’s been an excellent public official, and I appreciate what he has done for Arkansas. So, that’s been my connection with him for 35 years.

GREENBERG: So, did you have much of a relationship with him while he was a gubernatorial candidate in 2014, or in 2013/2014?
BRILL: In 2014, my wife and I made one contribution to his campaign, and I went to one event here in Fayetteville, a small event, and he was there. And I think that’s it.

GREENBERG: Did you give him any legal informal advice?

GREENBERG: I should say, informal advice?
BRILL: No, I did not.

GREENBERG: So, you more or less did not talk to him during 2013 and 2014, except for that?
BRILL: Correct.

GREENBERG: And also, I suppose, the first part of 2015?
BRILL: Correct, yes.

GREENBERG: Okay. So, yeah, I mean, I think many lawyers who might end up reading this might want to know, “Gosh, what’s the secret to getting appointed to Chief Justice?” And perhaps you’ve given some information there.

BRILL: Yeah, that’s my connection. When I returned from teaching in Russia in August of 2015, and my wife said that Chief Justice Hannah had stepped down, I said to myself, “Well, the Governor’s going to appoint a replacement.” I never really expected he would call me. And then, when I received a phone call from his staff that said, “Would you be willing to talk to him,” I said, “Yes, I’d be honored to talk to him.” And we had a brief conversation, and he said that I was his possible nominee who was ‘outside the box’. And I think he probably meant I’d never been a judge, I was not a retired judge, I was not a practicing lawyer. I was ‘outside the box’.

Beyond that, I don’t know why I was chosen. Just before I left office, in December 2016, I had a private meeting with the Governor, and I thanked him for the opportunity to serve the state, and told him how meaningful the opportunity had been for me.

GREENBERG: Well, changing the subject, I guess I’m curious, and again, I don’t want to ask you about anything you’d feel uncomfortable talking about, but it seems fair to say that you’ve been cautious about expressing an opinion about whether judges should be appointed or elected in Arkansas.


GREENBERG: Okay. So, am I allowed to ask you, what’s the reason for your caution on that? Is it more that it might be improper for you to express an opinion on that, or is it more that you’re just genuinely unsure? Can you say a little something about that?
BRILL: Number one, when I was on the Court, I was not going to take any stand because it would either please or offend some people, and I saw no point in doing that, both within the Court and in a broader community. So, that’s why I didn’t do it. Since I’ve left the Court, certainly, it’s proper for me to talk about it, but I think my views are still evolving a little bit. I was actually in a meeting yesterday with some students where someone asked me that same question, “Are you going to take a stand now?” And I said, “Not yet.”
So, you know, I see the arguments for appointment and I’ve considered them, and I’ve read the article, the column recently that was in the paper, but no, I think my views are still forming and shaping a little bit. So, that’s why I have not committed myself.

GREENBERG: So, is it fair to say that you are, at some level, genuinely unsure as to what the right answer on this is?

GREENBERG: Okay, fair enough. So, I’m going to ask you a few questions about sort of your experience in judicial management and Court management. I think I sent you a note about some phraseology in Amendment 80. The Chief Justice seems to have the general superintending control of all Courts, (well, that’s the way I read it, anyway), and that that’s to be administered by the Chief Justice. Tell me, were those phrases in your mind when you had kind of a difference of opinion or concerns about management of Court resources, such as the judicial website?
BRILL: Those phrases were paramount in my mind because, as I read the Constitution, the Chief Justice was to administer that superintending control, and to me, that was crucial, that the Chief Justice would be able to make those decisions  —-from a standpoint of efficiency, from the standpoint of the Constitution, and from the standpoint of some statutory language. So, yes, that language was paramount in my mind when I considered those issues.

GREENBERG: Were there other portions of the Constitution that were brought up that were relevant in this disagreement or this set of concerns that you had?
BRILL: Yes. I heard the competing argument that each justice is elected by the people, each justice is elected to serve the people, and therefore, each justice should have a role in this superintending control. So, I would say, this dispute comes from Article 3 of the Constitution, or Amendment 80, but it would be looked at slightly differently by associate justices, or at least some associate justices, and the way I looked at it.

GREENBERG: Fair enough. I read your previous interview. Would you agree that, at a few points in there, that there might be some implicit criticism of some of your colleagues in that previous interview?

GREENBERG: So, I want to ask you a question I didn’t clear with you before, but I think it’s an easy question. I want to ask if you’d be interested in identifying, on the record, your colleagues who you thought behaved collegially and did a good job. Is there any one of your colleagues that you want to remember publicly that you, overall, had a strong appreciation for their work and did not cause you the kinds of problems you identified?
BRILL: Dan, I…

GREENBERG: You might just want to skip that question.

BRILL: On the record, no, I don’t think it would be proper for me to either criticize any or praise any because, by praising or thanking some, I might be viewed as criticizing others. So, no, I’m not going to do that.

GREENBERG: Sure, sure. Well, you know, I’m intrigued by that – because I suspect that some people have already drawn inferences about things you said before. And so, I’m trying to… I mean, maybe you just don’t want to narrow the net of inferences, but it seems to me that you’ve already entered a thicket and I thought I was giving you a way out, but perhaps not.

BRILL: Well, I tried, in that earlier interview, to not mention names and not to draw any inferences. But, you know, I can’t guard against someone outside drawing inferences, but I just don’t want to give any support to anything by mentioning any names.

GREENBERG: Is it fair to say that you thought that you had some colleagues who behaved in a highly collegial way and that you always appreciated them?
BRILL: I enjoyed, very much, working with some colleagues, yes.

GREENBERG: Okay, fine. So, I’m curious. Do you think of yourself as more an introverted or extroverted person?
BRILL: I chuckle at that – “Do I think of myself as an introverted or extroverted person?” I would say that, for almost my entire life, I was an introverted person, clearly. By becoming a professor, I had to become more outgoing. I think the big change was about 12 years ago. I was the Dean of the law school for 10 months, and in that capacity I took on a number of public functions and had to speak much more frequently in public, and I think that caused me to become more outgoing. My wife says that I put on my Dean face, my Dean role, and I go out and do what needs to be done. So, I think that, although I’m naturally introverted, I have taken on that role.

GREENBERG: Do you think a… And just stop me if you think this is improper, but do you think a more extroverted person may have had fewer challenges of the kind that you described in your previous interview?
BRILL: That’s a very interesting question. I don’t know. I don’t know if a different personality, as the Chief, would have changed the dynamics of what I experienced. I really can’t answer that question. And, you know, what I’ve told people is that I knew, from the beginning, that I was the transition justice, that I was the justice between Jim Hannah and whoever was going to be elected. My goal throughout those 16 months was to try to have a smooth transition, to try to avoid conflict, to try to bring stability to the Court. And that might have, in some ways, shaped how I dealt with people and how I handled things, but that was my objective and I was pleased with that, and I thought it was important to bring about, to have a strong Chief Justice, whoever replaced me.


BRILL: I will tell you that I enjoyed my role of meeting people, and shaking hands, and going to functions, and interacting with the people at the Clerk’s Office, but I don’t know if a different personality would have had a different reaction at the Court. I don’t know.

Tomorrow TAP will conclude Dan Greenberg’s interview with Bill by discussing decision-making at the appellate level, the independence of the judicial branch, and SJR 8.

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