By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A group of veteran attorneys has organized to defend the process of how most judges in Arizona are selected and stand for reelection.

And they may raise some cash to keep Clint Bolick and Kathryn King on the Arizona Supreme Court.

The two justices have drawn significant attention and face a campaign by a political action group to deny them a new six-year term in November over their vote that allowed an 1864 abortion law to be enforced in Arizona.

But the move by the attorneys to preserve their seats on the state’s high court could deny Gov. Katie Hobbs the ability to immediately replace them with picks of her choosing.

Timothy Berg, the co-chair of the steering committee of Arizonans for an Independent Judiciary, said members are concerned about what has been an increase in efforts to oust sitting judges simply because voters did not like one or more of their decisions. He said that’s precisely the wrong way to determine whether someone is fit to sit on the bench.

Berg does not dispute that, despite the merit selection system approved by voters in 1974, politics still plays a role in who gets selected, particularly for the Arizona Supreme Court.

“It’s there,” agreed Paul Eckstein, the other co-chair of the organization.

“It’s politics at a whole different level,” he continued. “There’s no doubt about it.”

That shows up, particularly at the Supreme Court level, when a governor gets to pick a new justice. While that choice has to come from a list provided by the Commission on Appellate Court Appointments, there is a record of showing how that system can be gamed — by the governor — to get the choice he or she wants.

But Eckstein said that still doesn’t justify some efforts to oust a sitting judge.

“What our committee is concerned about is a campaign that is organized to take out good judges, good justices on a particular issue that they’re involved in,” he said. That means a single unpopular lone opinion being the “one focus” of the effort to oust them — and not everything else that person has done on the bench.

This year, it’s Progress Arizona that’s targeting King and Bolick for voting to reinstate the 1864 law that outlaws all abortions except to save the life of the mother.

They weren’t the only justices who concluded that older law supersedes a 2022 statute allowing abortion until 15 weeks. So did Justice John Lopez, who wrote the opinion and Justice James Beene, leading to the 4-2 ruling on April 9.

But King and Bolick are the only members of the high court who are before voters this year in their bid to get a full six-year term.

Berg said the effort to protect sitting justices actually goes back to this past winter, before the Supreme Court ruling on abortion.

That followed the decision in 2022 by voters who refused to return three superior court judges to the bench. He said that was based not on whether or not they were qualified but because some voters didn’t agree with some of their rulings.

“Our view is, of course, is that merit selection works because you look at his qualifications, you have a Judicial Performance Review process,” Berg said. “Therefore, you want to be looking at a judge’s qualifications rather than how they ruled in any individual case.”

Until 1974, judges were elected, just like other politicians.
The system, approved that year by voters, has special panels screen applicants for the Supreme Court, the Court of Appeals and to any trial court in a county of more than 250,000 people. The governor than has to choose from that list.

Judges then have to stand for reelection on a retain-reject basis, every six years for the Supreme Court and four years for others. If a judge is rejected, the process to fill that vacancy starts over again.

That’s what would happen in November if King and Bolick are turned out of office.

What that also would do is give Hobbs, who was highly critical of that abortion ruling, a chance to make two picks of her own.

That’s true, said Eckstein, who has long been active in Democrat politics. But he said it would be a mistake.

“It would destabilize the merit selection,” he said.

Eckstein said it already can be difficult to convince attorneys, who may have lucrative private practices, to give that up, even for the $205,000 salary that a Supreme Court justice makes.

“So you have to work at attracting good people,” he said. But if you add to that the chance that an unpopular decision could result in your ouster — or that some people would want to rebalance the court politically — that could deter some otherwise qualified attorneys from even applying.

Anyway, Berg said, Hobbs still may get her chance to put her stamp on the court, as the Arizona Constitution requires judges to retire at age 70; there is no such thing as a lifetime appointment as there is at the federal level.

All that, however, has to be seen against the backdrop of the politics already in the system.

In 2016, for example, Republican Gov. Doug Ducey got the Republican-controlled Legislature to expand the Supreme Court, from five justices to seven. That gave Ducey, who by that time, had named just one person to the bench, two more immediate choices.

Sen. J.D. Mesnard, a Republican representative from Chandler at the time, said he believed a larger court was appropriate even though the five sitting justices from both parties called it unnecessary. But he conceded politics played a role in giving Ducey two new picks.

“If there were a Democrat up there, I’m sure I’d have heartburn,” he said.

That expansion enabled Ducey to add Lopez to the court — the author of the abortion decision — as well as Andrew Gould. Gould left to pursue an unsuccessful bid for attorney general in 2021, opening the door for Ducey to name King as his replacement.

There are other political games that have been played.
In 2019, Maricopa County Attorney William Montgomery sought a seat on the high court to replace retiring Justice William Pelander. But the Commission on Appellate Court Appointments voted 7-5 against sending his name to the governor, leaving Ducey to name Beene.

Montgomery drew opposition not only for his positions on gay rights but also amid claims that he used his position to try to block implementation of the 2010 voter-approved Arizona Medical Marijuana Act.

Later that year, however, Ducey replaced several commission members, including three who voted against Montgomery. That created an all-Republican commission.

That revised panel decided to send seven names to the governor — the law requires just three — for him to choose. That included Montgomery, who was chosen.

Montgomery was not a factor in the abortion case, recusing himself. While he did not provide a reason, it came after disclosure that, as county attorney, he made some statements about Planned Parenthood, including that it is “responsible for the greatest general genocide known to man.”

It would not have mattered, however, given the 4-2 vote of the remaining justices.

Berg said the abortion ruling — and how Bolick and King voted — should be seen as an outlier.

“Most courts, most of the issues they see on a day-to-day basis, aren’t political issues,” he said. Instead, Berg said, they end up being things like contract disputes between businesses. And certainly at the trial level, he said, what comes up are criminal cases, divorces, juvenile matters and civil disputes.

“Most of what you do is sort of the day-to-day business of resolving disputes between people and between companies,” he said.

One reason the lawyers formed the committee is the rules of conduct for judges prohibit them from soliciting funds to convince voters to let them have another term. That means the only option for anyone to actually run a campaign on their behalf is if some group, acting as a “surrogate,” raises the necessary dollars.

Eckstein said any involvement in a campaign to keep King and Bolick on the bench would not be his first.

He headed up a committee formed to quash a similar effort in 2012 to oust Pelander. That came after he voted with other Supreme Court justices to allow voters to decide whether to approve an “open primary” system where the top two vote-getters would advance to the general election, regardless of party.

The justices did not rule on the merits of the plan but instead concluded only that a trial judge did not err in how it handled the case, a ruling that angered some Republicans. As it turned out, though, voters defeated the initiative.