Supreme Court Justice Cliff Hoofman has recused from considering the appeal of Judge Chris Piazza’s decision striking down the state’s constitutional and statutory ban on same-sex marriage.
The recusal was filed Wednesday afternoon. It came with no explanation. I don’t know if the governor’s office has yet received a request to appoint a special justice to hear the case in place of Hoofman.
There are seven members on the court. It’s hard to predict where Hoofman might have fallen on this issue or if his vote or that of a special justice could constitute a swing vote on the issue. It’s always better to have a regular justice decide a case over a special appointee. That’s what justices have their jobs for, after all.
Hoofman is not an elected member of the court, however. He was appointed by Gov. Mike Beebe to complete an unexpired term when Robert Brown retired. He leaves the court at the end of the year. Court of Appeals Judge Rhonda Wood will replace him. She has run for office repeatedly as a “values” and “conservative” judge and used her ties to Republican politicians such as Mike Huckabee, who has been harshly critical of Piazza’s ruling.
Hoofman has stepped away from at least one other contentious issue on the court, the question of hiring a new Supreme Court clerk.
Beebe, a former Senate colleague of Hoofman, has appointed him to openings on the state Highway Commission and the Arkansas Court of Appeals as well as the Supreme Court. Rumor has circulated that he’d like Beebe to appoint him before his term is up in January to the Court of Appeals seat Wood is vacating. Avoiding a vote on this high-profile case might make sense in such figuring. Surely Beebe has favored Hoofman with all the favors he can expect by now.
The appellant (state) brief in the case is due Sept. 15. The plaintiffs in the case then will have 30 days to respond. Then 15 days is allowed for a reply brief. Oral arguments can be requested and judges generally take a couple of weeks to rule after arguments. Extensions can be requested. The case, then, likely won’t be decided until at least in November.
The winning side in the case, those seeking to strike down the ban, had earlier asked that Supreme Court members facing future elections recuse from the case. Their reason was a threat from the legislature to punish judges who voted to overrule the ban by impeachment or recall. As many as five justices theoretically could run again, though because of penalties in loss of retirement for running after age 70, only two — Justices Karen Baker and Courtney Goodson — were likely to run again. The Court refused that recusal request.
The Supreme Court stayed Piazza’s order pending the appeal.
As of Friday, the governor’s office said it hadn’t received word of a request for a special justice.