Lawyers organize to defend judges

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A group of veteran attorneys have organized to defend the process of how most Arizona judges are selected and stand for re-election.

And maybe they’ll raise some money to keep Clint Bolick and Kathryn King on the Arizona Supreme Court.

The two judges have attracted widespread attention and are facing a campaign by a political action group to deny them another six-year term in November over their vote that allowed an 1864 abortion law to be enforced in Arizona.

But the attorneys’ move to keep their seats on the state Supreme Court could deprive Gov. Katie Hobbs of the opportunity to immediately replace them with picks of her choosing.

Timothy Berg, the co-chair of the steering committee of Arizonans for an Independent Judiciary, said members are concerned about the increase in efforts to remove sitting judges simply because voters didn’t like one or more of their decisions. He said this is exactly the wrong way to determine whether someone is fit to sit on the bench.

Berg does not dispute that despite the merit selection system approved by voters in 1974, politics still plays a role in who is selected, especially for the Arizona Supreme Court.

“It’s there,” agreed Paul Eckstein, the organization’s other co-chair.

“It’s politics on a completely different level,” he continued. “There’s no doubt about it.”

This is especially evident at the level of the Supreme Court, when a governor may choose a new judge. And while that choice must come from a list provided by the Commission on Appellate Court Appointments, there is evidence showing how that system can be manipulated — by the governor — to get the choice he or she wants.

But Eckstein said that still doesn’t justify any attempt to oust a sitting judge.

“What our committee is concerned about is a campaign that is being organized to involve our good judges, good judges, in some issue in which they are involved,” he said. That means that a single, unpopular, lonely opinion is the “sole focus” of the effort to dislodge it – and not everything else that person has done on the bench.

This year, it is Progress Arizona that is targeting King and Bolick for voting to restore the 1864 law that bans all abortions except to save the life of the mother.

They were not the only judges who concluded that an older law replaces a 2022 law that allows abortion up to 15 weeks. That includes Judge John Lopez, who wrote the opinion, and Judge James Beene, which led to the 4-2 ruling on April 9.

But King and Bolick are the only members of the Supreme Court to appear before voters this year in their bid for full six-year terms.

Berg said efforts to protect sitting judges actually go back to last winter, before the Supreme Court’s ruling on abortion.

That followed the 2022 decision by voters who refused to return three Superior Court judges to the court. He said this was not based on whether or not they were qualified, but because some voters disagreed with some of their statements.

“Obviously our view is that the merit selection works because you look at his qualifications and you have a Judicial Performance Review process,” Berg said. “That’s why you want to look at the qualifications of a judge, rather than the way he ruled in an individual case.”

Until 1974, judges were elected, just like other politicians.

The system, approved by voters that year, features special panels that screen candidates for the Supreme Court, the Court of Appeals and for every trial court in a province with a population of more than 250,000. The governor must then choose from that list.

Judges must then stand for re-election on a retention-and-rejection basis, every six years for the Supreme Court and four years for others. If a judge is dismissed, the process to fill that vacancy begins again.

That’s what would happen in November if King and Bolick were removed from office.

What that would also do is give Hobbs, who has been highly critical of the abortion decision, the opportunity to make two choices for himself.

That’s true, said Eckstein, who has long been active in Democratic politics. But he said it would be a mistake.

“It would destabilize merit selection,” he said.

Eckstein said it may already be difficult to convince lawyers, who may have lucrative private practices, to give that up, even for the $205,000 salary a Supreme Court justice makes.

“So you have to work to attract good people,” he said. But add in the possibility that an unpopular decision could lead to your ouster — or that some people might want to rebalance the court politically — that could deter some otherwise qualified attorneys from even applying.

Regardless, Berg said, Hobbs could still get a chance to make her mark on the court, since the Arizona Constitution requires judges to retire at age 70; There is no such thing as a lifetime appointment as there is at the federal level.

However, all of this must be seen against the backdrop of the politics already present in the system.

For example, in 2016, Republican Gov. Doug Ducey got the Republican-controlled Legislature to expand the Supreme Court from five to seven justices. That gave Ducey, who by then had only named one person to the bench, two more immediate choices.

Sen. J.D. Mesnard, a Republican representative from Chandler at the time, said he believed a larger court was appropriate, even though the five sitting justices from both parties called it unnecessary. But he admitted that politics played a role in giving Ducey two new choices.

“If there was a Democrat up there, I’m sure I’d get heartburn,” he said.

That expansion allowed Ducey to add Lopez — the author of the abortion decision — and Andrew Gould to the court. Gould left to pursue an unsuccessful bid for attorney general in 2021, opening the door for Ducey to appoint King as his replacement.

More political games have been played.

In 2019, Maricopa County Attorney William Montgomery sought a seat on the Supreme Court to replace retiring Judge William Pelander. But the Court of Appeals Appointments Committee voted 7-5 against sending his name to the governor, leaving Ducey with the name Beene.

Montgomery faced opposition not only for his positions on gay rights, but also for claims that he used his position to block implementation of the voter-approved Arizona Medical Marijuana Act of 2010.

Later that year, however, Ducey replaced several committee members, including three who voted against Montgomery. This created an all-Republican committee.

And that revised panel decided to send seven names to the governor — the law only requires three — for him to choose from. That included Montgomery being elected.

Montgomery played no role in the abortion case and blamed himself. Although he did not give a reason, it came after the revelation that as county attorney he made several statements about Planned Parenthood, including that it is “responsible for the greatest blanket genocide known to man.”

It wouldn’t have mattered, however, given the 4-2 vote of the remaining justices.

Berg said the abortion ruling — and the way Bolick and King voted — should be viewed as an outlier.

“Most of the courts, most of the issues they deal with on a daily basis are not political issues,” he said. Instead, Berg said, they end up being issues like contract disputes between companies. And certainly at the trial level, he said, this concerns criminal cases, divorces, juvenile cases and civil disputes.

“Most of what you do is kind of a day-to-day thing: resolving disputes between people and between companies,” he said.

One of the reasons the lawyers formed the committee is because the rules of conduct for judges prohibit them from raising funds to convince voters to give them another term. That means the only option for anyone to actually run a campaign on their behalf is for a group, acting as a “surrogate,” to raise the necessary dollars.

Eckstein said any involvement in a campaign to keep King and Bolick on the bench would not be his first.

He led a committee tasked with quashing a similar attempt to oust Pelander in 2012. That came after he voted with other Supreme Court justices to allow voters to decide whether to approve an “open primary” system, in which the top two votes would advance to the general election regardless of party.

The justices did not rule on the merits of the plan, concluding instead only that a judge had not erred in how he handled the case, a ruling that angered some Republicans. However, it turned out that voters rejected the initiative.