Gov. Jan Brewer said Monday she is resigned to not being able to choose whoever she wants to be Arizona’s next Supreme Court justice.
But she doesn’t like it.
Brewer, a foe of what has been called “merit selection” of judges, is slated to get a list of at least three names from the Commission on Appellate Court Appointments on who panel members believe are the most qualified to sit on the state high court. That list is due to go to Brewer on June 30, the day that current Chief Justice Ruth McGregor steps down.
It doesn’t matter whether Brewer likes any of the people nominated or has someone else in mind: The state Constitution requires Brewer to choose from that list. And if Brewer balks, Rebecca Berch, who is slated to take over as chief justice on July 1, gets to make the choice.
“The way that it is written now in Arizona, we have to work within that system,” Brewer said of the constitutional provision approved by voters in 1974.
She said there are some positive things about the system.
“Certainly, it gives me the opportunity to have a lot of these people prescreened,” the governor told Capitol Media Services. “Of course, it limits my choices also.”
In a 2006 questionnaire, Brewer, then a candidate for re-election as secretary of state, said she wants to scrap the system. She said the governor should be able to appoint whoever she or he wants, subject only to Senate confirmation.
That’s the system that exists at the federal level, the one which President Obama gets to use in choosing a replacement for retiring U.S. Supreme Court Justice David Souter.
Her opposition to “merit selection” is not recent: As a legislator, Brewer voted in 1992 to allow residents of Pima and Maricopa counties to directly elect their superior court judges in contested races, the same way they elect their politicians. That bill failed.
Any effort by Brewer or others to alter the system would require amending the constitution, something that would need voter approval. That leaves the governor stuck with the current system.
“We will do the very best that can be done,” she said of her responsibility.
This method of choosing judges has repeatedly come under fire, largely by political conservatives.
Cathi Herrod, president of the Center for Arizona Policy, said that it tends to result in “liberal judges.” Her group has favored some variant of the federal system.
McGregor’s resignation likely will give Brewer a chance to change the political balance on the five-member court.
Three of the justices are Democrats, including McGregor. The retiring justice, however, was not really seen as partisan, as shown from the fact she was put on the court by Republican Jane Hull when she was governor.
Chances are good that Brewer will get at least one Republican from which to choose. The constitution requires the appellate court commission to send her at least three nominations, no more than two from the same political party.
Brewer said she has no “litmus test” of hot-button issues, like vouchers or abortion, that she intends to ask — or that will determine whether she finds a nominee acceptable. But the governor said she is sure some issues will come up.
“I know as we do interviewing and we talk to people, certain things sort of come up and you distinguish between what you feel comfortable with and you don’t feel comfortable with,” she said.
And Brewer said she already has started thinking about the kind of person she wants to appoint.
“Integrity and honesty and somebody that can interpret the law according to the way it is written,” she said.
Before 1974, all judges in Arizona were elected.
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 within 60 days or forfeit the right to the chief justice of the Supreme Court.
The other half of the system spells out that whoever the governor selects then “runs” for re-election on a regular basis on a “retain-or-reject” system, with no actual foe on the ballot. If voters turn someone out of office, then the selection process starts over again.