Having litigated in more than 10 states, I’ve seen the gamut of state court judges from smart and objective to political hacks. A main reason I came to Arizona is the overall fairness and high quality of our state’s judges.
Many here attribute the quality of our bench to Arizona’s “merit selection” of judges, which voters added to the state constitution in 1974. Under that system, judicial nominating commissions made of attorney and non-attorney members propose a limited number of nominees to the governor, who must choose from the list. Most judges face judicial retention elections.
In some other states, judges are elected or are appointed by the governor with Senate confirmation — either way, a highly political process.
The main problem with Arizona’s merit selection system is the outsized role given to the Arizona State Bar, which nominates attorneys for the commissions. The Bar tends to be politically liberal, and so do the commissions. The governor’s choices for commissioners and judges are very limited. As a result, proposed nominees often include no conservatives.
In November 2012, voters will consider changes to the system to reduce the Bar’s role and increase the governor’s in choosing commission members and judges. If approved, the State Bar will choose one of five attorney members of the commissions while the governor will choose four. The commissions in turn will recommend eight, rather than three, candidates for appellate judgeships, from which the governor may choose.
The proposed changes should preserve the benefits of merit selection while reducing its negative aspects. A potential pitfall is super-sizing the governor’s role without allowing the Legislature some oversight. If approved by voters, the changes should maintain a smart, judicious bench while expanding its philosophical diversity.
• Clint Bolick is litigation director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation