Fed up with a system that featured campaigns for judicial office that included yard signs and bumper stickers, that forced judges to seek campaign contributions from lawyers and parties who would be appearing before them, and that produced judges who occasionally delegated decision-making to their judicial assistants, Arizona voters decided nearly a half century ago to choose a better way.
The better way, called Merit Selection, was adopted in 1974 by nearly 66 percent of those voting to amend the Arizona Constitution. Merit Selection provides for citizen and lawyer nominating commissions. These commissions are given the responsibility to interview and present a bipartisan slate of nominees to the governor, who then chooses a judge from the list.
The Merit Selection amendment governs appointments to the Arizona Court of Appeals and the Arizona Supreme Court. It also governs appointments to the Arizona Superior Courts in counties with over 250,000 residents (initially just Maricopa and Pima), where voters are less likely to know the backgrounds and records of all candidates for judicial office. When the population of Pinal County grew to 250,000, it too became covered by Merit Selection. All counties, regardless of size, may opt to be covered by Merit Selection, which Coconino County chose to do in 2018.
The constitution provides that all trial judges covered by Merit Selection must stand for retention by voters every four years and all Court of Appeals judges and Supreme Court justices every six years. Importantly, a 1992 constitutional amendment provided for the creation of a commission to evaluate judicial performance of those up for retention so that voters can make informed decisions in retention elections.
In 1992, the voters approved an amendment to Merit Selection requiring each Superior Court nominating commission to include representatives from each supervisorial district in the county, a move designed to assure diversity in each list of nominees presented to the governor.
Merit Selection has worked well in the nearly half century since it was adopted. We, the authors of this op-ed, long-time Arizona lawyers of different political parties, and co-chairs of Arizonans for an Independent Judiciary (see our website at www.azjudges.org), a committee formed to preserve Merit Selection, know this well. As lawyers who have practiced in other states’ courts, we have seen what happens where judges are elected by popular vote in expensive political campaigns fueled by contributions from lawyers and other groups. We know that Merit Selection is not perfect, but we also know the overwhelming number of persons chosen as judges under Merit Selection are extremely well qualified, learned in the law, fair minded, decide cases on the merits, and are independent, not beholden to political donors.
Today Merit Selection is under attack by partisan forces on both sides — many from out of state – some of whom don’t like the fact that all seven members of the current Supreme Court were chosen by governors of the same political party. Some are critical that a majority of the current Court decided one case that produced an unpopular result concerning which Arizona statute governed abortion in this state; others, probably of a very different political persuasion, are critical of the Court’s decisions in various election contest cases concerning the 2022 elections. The fact that both groups are unhappy with the Court and think it is political suggests to us exactly the opposite.
So, what exactly do those partisan forces want to do? Some of them want voters in the November 5, 2024 election to remove two well qualified and respected members of the Supreme Court (Justices Clint Bolick and Kathryn King) because they were selected by a Republican governor and because of how they voted on a controversial case involving legislation, which was ambiguous. Between now and November, we may hear from other groups wishing to remove other Justices, Court of Appeals judges or Superior Court judges because they make a decision with which the group disagrees. We think that is wrong and short-sighted; it punishes Justices and judges for a single unpopular decision and not because they have failed to perform fairly the duties of their office.
Incidentally, within three weeks of the abortion decision, the Legislature did exactly what legislatures do when they disagree with a court decision interpreting one of their laws: They clearly and unequivocally repealed the 1864 abortion law. The system of checks and balances worked as it should.
We are concerned that, if successful, the current attacks will:
- Cause Arizona judges chosen under Merit Selection to look over their shoulders to see which way the political winds are blowing, before deciding cases;
- Cause qualified persons who want to be judges to pass up public service for fear of being drummed out of office unceremoniously because of one unpopular decision;
- Result in judicial elections that attract candidates who appeal to the popular opinion of the day rather than candidates who are committed to following the law, wherever it might lead.
- Lead ever more out-of-state dollars to be spent attempting to influence how we Arizonans conduct our business—in this case, of our state judicial system
In our system we go to the legislature to rescind unpopular laws. We rely on judges to decide cases presented to them in a fair and impartial way, bringing all the learning they can to achieve a result required by judicial principles, not popular opinion.
Timothy Berg serves as general counsel for Fennemore.
Paul Eckstein is an attorney with Perkins Coie Brown & Bain.
