Anatomy of a smear

State Sen. Bart Hester of Cave Springs in Benton County, a pleasant extremist who probably will be the next president pro tempore of the Senate, says there’s no difference between savage liberal attacks on conservative judges and his calling the Arkansas Supreme Court “a friend of the child rapist.”

There is a difference, though.

The most serious attacks on any appellate justice from the left that I can recall were directed toward Brett Kavanaugh during his confirmation hearing. They had to do with women accusing him of drunken adolescent sexual assault, and with whom one believed. It concerned whether Kavanaugh was worthy amid such charges to join the nation’s highest court.

Last week, Hester publicly called the Arkansas Supreme Court a “friend of the child rapist” because of a legal technicality that a 4-3 majority found it necessary to apply under the law in remanding a gruesome child murder case to Benton County for retrial.

Kavanaugh was smeared, you might say, in the course of a background check for his confirmation. The entire Arkansas Supreme Court was smeared, you might say, for applying the law and doing its job.

If you’re going to smear somebody, the context is better in the confirmation process.

Hester brought up the matter when a Supreme Court contract for architectural services came before his committee. He didn’t tie the contract to his displeasure. He merely used the contract as an opening to express his overheated displeasure.

What the four state Supreme Court justices decided was that the Benton County court should not, by state law, have used a rape of a 6-year-old child occurring on a camping trip in Missouri as an essentially compounding factor proving capital murder in Arkansas, where the child died of horrid complications the next day.

The court majority sent the case back for Benton County to conduct a retrial.

State law requires certain compounding factors to be proven to elevate a murder conviction to capital murder. In this case, the prosecutor cited two such factors—one murder with rape and the other murder with child abuse.

It was not known on which the jury relied in returning a capital murder conviction. For that reason, the four judges said they couldn’t be sure the capital murder determination wasn’t based on a factor that the applicable Arkansas law didn’t allow to be used.

It was a strictly legal ruling, not an exercise in friendship toward a child rapist. Most thinking adults can see that. It in no way meant the local court couldn’t take the case back and win a capital murder conviction on the child abuse factor alone. And the retrial gets underway this week.

The three Supreme Court justices voting the other way did not agree with the legal point. But none of them referred to their four colleagues as friends of child rapists.

Hester’s lamentation is that the horrific matter had to be relived at a second trial when the only issue was, as he put it, that the Supreme Court got “confused” about a state line.

The four justices weren’t confused. They saw the law clearly. And, paining them though I presume it did, they applied it.

“I simply believe we need more justices from the side of three and less justices [he meant fewer] from the side of the four,” Hester wrote to me Sunday. “As to whether or not they can be criticized, I have watched your side savagely attack justices with whom they disagree. So, I think the truth is that it’s not questioning justices you find offensive. It’s criticizing liberal justices.”

Notice that Hester’s construction of the issue is all about the prevailing and bitter ideological divide. But not everything falls along that handy continuum.

We’re talking about appropriateness and proportion.

In that regard, current Senate leader Jim Hendren and House Speaker Matthew Shepherd—asked by a reporter for reaction to Hester’s smear—cut the young senator slack. Shepherd said there is free speech and Hendren said it’s hard to say anymore what if anything is beyond the pale rhetorically.

They go easy on Hester because he is a good-hearted team player within the insular legislative culture, or so I’m told.

Hester is the current majority leader of the Senate and likely to be elected to succeed Hendren as president pro tempore, meaning the leader of the entire Senate, in the regular session of 2021.

Reasonable legislative colleagues tell me Hester can be reasoned with.

Four state Supreme Court justices might have reason to believe Hester cannot always be reasoned with, or at least reasonable.

For the record, to be clear: I have little regard for the Arkansas Supreme Court. I think the members are mostly Republican partisans living several tiers below the elite of the Arkansas Bar. But I wish to stipulate that I don’t think there is a friend of a child rapist among them.

And I also think the prevailing four got the central issue of this case right, uncomfortable though their work sometimes must be.