Deforming the Judiciary in Arizona

By now, many people have weighed in on Proposition 115*, which has been deceptively characterized as an effort to amend the Arizona Constitution to reform the Arizona Judiciary.

One group that has been vigorously advocating FOR changing the way judges are selected and retained for several years is the Center for Arizona Policy.**

Arizona’s current system of judicial selection lacks appropriate checks and balances among the three branches of government, lacks accountability, and has not removed politics from the system. In 2011, the Legislature passed CAP-supported SCR 1001 to place a measure on the 2012 ballot to make changes to Arizona’s judicial selection system.

SCR 1001 is a consensus measure to improve the system by allowing the Governor to select from a larger pool of names, removing the party affiliation restraints, and changing the role of the State Bar of Arizona in nominating attorney members for the “merit-selection” commissions. (emphasis in original)

[My] Translation of the language posted by Cathi Herrod's group is informative:

Arizona's current system of judicial selection is too difficult for the political branches of Arizona government (and therefore, me, Cathi Herrod) to intimidate and manipulate. But I have great news: in 2011, I was able to get Russell Pearce to push a senate resolution to passage that can change the whole ballgame.

SCR1001 is a measure that masks our scheme to hyper-politicize Arizona courts by including a couple of harmless provisions that other people like so that we could get enough votes to put the measure on this year's general election ballot.

Fortunately, editorial content expressing opposition to this misguided attempt to set up Arizona courts for politicization, intimidation and manipulation is plentiful. Which makes my job a bit easier. A sampling, starting with the Arizona Republic:

The greater part of Prop. 115 -- indeed, its reason for being on the ballot -- threatens the independence of Arizona's most respected branch of government, its judiciary.

The Arizona Republic strongly urges the defeat of Prop. 115. Its primary goal -- putting greater judicial appointment power in the hands of the executive branch -- has "unintended political consequences" written all over it.

Worse, it places a truly unsettling review power in the hands of the Legislature. Oh, the horror of that spectacle. If the prospect of some legislative beanie-spinner like Rep. Jack Harper presiding over judiciary show trials doesn't make your blood curdle ...

Yes, the current "merit selection" system of judicial appointments is indisputably flawed. There just is no perfect system.

Prop. 115 is the brainchild of a small group of lawmakers who see the State Bar of Arizona as too liberal and too influential regarding which candidates for the judiciary get recommended to the governor.

The conflict is a long-running one. But you need not favor either side to realize Prop. 115 re-positions power over the judiciary from the current, delicate balance between these warring parties onto the side of the Office of the Governor. Whatever the benefits of such a move, taking politics out of the process won't be one of them. (emphasis mine)

Cronkite News Service's Fara Illich wrote:

Proposition 115 would require that orders and opinions by state judges and justices be published online.

and

Under the measure, a joint legislative committee could hold hearings to gather testimony on the performance of judges and justices who are facing retention votes. 

Now, go back to what the Republic said (above) about envisioning someone like Jack Harper conducting hearings over judges up for retention.

For me to go into any more depth on this proposition would constitute rambling on unnecessarily. I believe the points I made above constitute the most salient aspects of the situation and, frankly the possibility of 115 passing is scary even to me.

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* Those arguing in favor of Prop 115 passage in the official publicity pamphlet sent to all Arizona voters include:

• State Rep. Eddie Farnsworth (R-Gilbert), current chair House Judiciary Cmte
• Republican Gov. Jan Brewer
• Senate President Steve Pierce (R-Prescott)
• Speaker of the Arizona House Andy Tobin (R-Prescott)
• Kirk Adams, former House Speaker and Republican candidate for Congress
• Cathi Herrod, president of Center for Arizona Policy
• Steve Twist, Republican lawyer and activist

By the way, most, if not all of those listed above were very vocal in criticizing the Arizona Supreme Court for nullifying the effort to decapitate the Independent Redistricting Commission. That is the very kind of thing goons and bullies like Ms. Herrod want to be able to use to intimidate and manipulate judges, justices and their rulings.

The list of those arguing against passage of 115 in the publicity pamphlet includes:

• Tim Hogan, attorney Arizona Center for Law in the Public Interest 
• Barbara Klein, League of Women Voters, Arizona
• Five retired Chief Justices of the Arizona Supreme Court, Stanley Feldman, Thomas Zlaket, Ruth McGregor, Frank Gordon and Charles Jones
• Noel Fidel, former Chief Justice, Arizona Court of Appeals, Div. One
• Doris Marie Provine, President, Arizona Advocacy Network
• Bill Roe, Chairman, Arizona Democratic Party

** While I argued regarding Prop 121 that favoring the measure just because of who opposes it is irrational and illogical, considering who supports Prop 115 along with WHY they support it leads to examination of the underlying issues at the center of the debate.