PHOENIX — State lawmakers are free to require that a governor get more choices to fill judicial vacancies, the Attorney General's Office argued late Wednesday.
Assistant Attorney General Michael Tryon acknowledged that a 1974 voter-approved constitutional amendment says special screening panels need not submit more than three names to the governor for each vacancy. By contrast, the legislation adopted earlier this year mandates they nominate at least five unless, with a two-thirds vote, they conclude there are not that many qualified applicants.
Lawmakers are precluded from tinkering with anything that voters have approved without taking the issue back to the ballot.
But Tryon told the Arizona Supreme Court the legislation does not unconstitutionally alter the selection process “but instead constitutes a reasonable supplement to its constitutional purpose.” And he asked the Supreme Court justices — all of whom were chosen through the current process — to leave the legislative changes in place.
Prior to 1974 all judges in the state were directly elected like other politicians.
The amendment set up special panels to screen applicants for the Supreme Court, Court of Appeals and superior courts in Pima, Maricopa and, more recently, Pinal counties. They must submit at least three names to the governor, not all from one party, with the governor's choice limited to that list.
This measure says governors must, in most circumstances, get at least two more choices.
Members of the commission that screens appellate-level court appointments sued, saying lawmakers exceeded their authority.
Tryon, however, said the 1974 amendment simply set the floor for nominees at three. He said lawmakers, wanting more choices for the governor, are free to expand that to five.
“This court should defer to the Legislature's finding of fact that merit selection will be advanced by creating a situation in which a greater number of nominees is likely, but is not required,” he wrote.
Last year, voters rejected a constitutional amendment to require a governor to get at least eight nominees. But Tryon said that measure made other changes in the merit selection process and that rejection does not preclude lawmakers from pushing this plan without putting it on the ballot.
Gov. Jan Brewer, who signed the legislation, is a supporter of having more choices. In fact Brewer is on record favoring a federal-style system where she could name anyone she wants to the bench subject only to Senate confirmation.
That, however, would require voter approval.