Arizona voters are being asked to give Gov. Jan Brewer and her successors more power to choose who they want to serve as judges.
Proposition 115 would sharply alter the process voters approved in 1974 which has special screening panels review would-be judges for the Supreme Court, Court of Appeals and the superior courts of Pima and Maricopa County. The governor is required to pick from as few as three finalists.
This new measure would require a governor to be given at least eight choices.
But potentially more damaging, according to attorney Mark Harrison, is the governor would get greater control of who serves on the screening panels. He said that undermines in “insidious” ways the whole concept that only the best get to wear the black robes, replacing it with a system of political appointments.
So far, though, Harrison and a few others who formed a committee this week to battle the ballot measure appear in the minority. In fact, Proposition 115 is backed by the Arizona Judges Association.
But Pete Dunn, the group’s lobbyist, conceded that support was in some ways extorted. Lawmakers said if foes of change did not compromise, they would impose something the judges consider even worse: Requiring not just Senate confirmation of new judges like occurs at the federal level but unprecedented reconfirmation when their terms are up, giving lawmakers a chance to review and criticize the decisions they made on the bench.
“That would have destroyed merit selection in Arizona,” said Dunn.
Until 1974, all judges in Arizona were elected, the same as any politician.
The constitutional amendment approved that year has applicants for the Supreme Court, Court of Appeals and trial courts in Pima and Maricopa counties screened by special commissions. The governor must select from that list.
Whomever the governor selects then “runs” for re-election every four years.
But voters only say whether to keep or reject a judge, with no actual opponent appearing on the ballot. If a judge is rejected — something that has happened only twice since 1974 — the selection process starts over again.
Cathi Herrod, president of the Center for Arizona Policy, said the selection process is flawed because the State Bar of Arizona gets to name all five attorneys on the selection commissions.
While there are 10 on the panel who are not lawyers, Herrod said the attorneys tend to set the tone, with the chief justice of the Supreme Court chairing the commission. She said that results in political influence of a different type, with the list sent to the governor — from which she must choose — heavy with those who are likely to be “liberal judges.”
Supporters of merit selection have been able to beat back most bids to scrap it before by offering minor changes. For example, voters are now given pamphlets with evaluations of judges up for retention.
Last year, however, the Senate voted overwhelmingly for the confirmation and reconfirmation process. That forced the judges — and the State Bar which backed the 1974 system — to compromise or face the possibility of having that issue on the November ballot.
The most visible change is that the governor gets at least eight names from which to choose.
Mary Schroeder, a judge from Arizona on the 9th U.S. Circuit Court of Appeals, said that, given the number of applicants that openings often draw, that will pretty much result in anyone who meets the minimum legal qualifications getting nominated.
“It does away with the concept of merit selection, which is you take the most qualified,” said Schroeder, who previously served as a judge on the state Court of Appeals.
The measure does allow the screening panel, with a two-thirds vote, to send fewer than eight names to the governor. But Harrison said that won’t happen with the governor choosing not only the 10 non-lawyer members of the screening panel but also four of the five attorneys.
“The only plausible reason for the Legislature wanting to change it is to give somebody more political power,” he said, that somebody being the governor.
Brewer wants that power.
She told Capitol Media Services shortly after becoming governor in 2009 she prefers a federal system, where she gets to act like the president and select whoever she wants to serve on the bench subject only to Senate confirmation. But press aide Matthew Benson said Tuesday his boss can live with what Proposition 115 proposes.
“The governor will have more qualified candidates to choose from,” he said.
But Clint Bolick of the Goldwater Institute said while changes are needed in the judicial selection system, this might give the governor too much power. Bolick said while a governor should probably get more than three names from which to choose, forcing the commission to nominate at least seems “excessively high,” allowing some to slip through that maybe should not be on the list in the first place.
Schroeder sees something else worrisome in the plan: It allows the Legislature to have public hearings on judges who are up for reelection.
“It seems to me that this invites the potential for intimidation, which is the exact opposite of what we want in an independent judiciary,” she said. “We don’t want folks calling up and cross-examining judges about their decisions.”
Dunn, however, said he’s not worried about that. He said nothing in state law precludes lawmakers from having such hearings — and nothing in the new proposal actually requires a judge to agree to be questioned about his or her prior rulings.
The measure does have one thing judges want: Mandatory retirement age, now 70, would be raised to 75.