Tell Cathi and Mike Herrod that they don't own the women of Arizona -- UPDATED 4 pm MST 10-22-14

See UPDATE at the bottom of the post

Ten days ago, the Arizona Eagletarian posted a call to FIRE Maricopa County Superior Court judge Michael Herrod.

Not long after the post was published, a poster calling her self Sarah posted a comment:

In the performance of his job duties, is he a capable and impartial jurist? Even though his wife is a lobbyist with views that I find wrong at best and abhorrent at worst, if he is capable and impartial in his duties, what grounds do I have not to vote for his retention?

To which, I replied that Sarah doesn't have to justify her vote to anyone. So, who am I to say what grounds she must use for deciding her vote?

Yesterday, Arizona Republic resident curmudgeon Doug MacEachern wrote an op-ed expressing horror over the suggestion that Herrod should be fired because of "guilt by association." He opens with,

A campaign is underway to oust Judge Michael Herrod of Maricopa County Superior Court. It has nothing to do with Herrod's record as a judge. It has nothing to do with Herrod himself. He is married to Cathi Herrod, whose opposition to abortion and support for traditional marriage has rendered her a Koch brother to the left. For the crime of being married to such a person, they wish to run Judge Herrod from the bench. Politics of personal destruction, anyone?

The claim that the campaign to remove Mr. Herrod from the bench has nothing to do with Herrod himself is a brazen misrepresentation of the facts. It is also a red herring.

Red Herring seems to be MacEachern's favorite fallacy.

The idiom "red herring" is used to refer to something that misleads or distracts from the relevant or important issue. It may be either a logical fallacy or a literary device that leads readers or characters towards a false conclusion. A red herring might be intentionally used, such as in mystery fiction or as part of a rhetorical strategy (e.g. in politics), or it could be inadvertently used during argumentation.

In this case, as with the other recent Republic op-eds claiming "guilt by association" it represents a shiny object used to distract.

IF MacEachern had interest in enlightening rather than deceiving his readers, he could easily have included key facts. Namely, that Michael Herrod served on the board of the Center for Arizona Policy. Including subsequent to his appointment to the bench. Is that not political activity? Does it not violate his code of judicail conduct (see Canon 4, and NOTE below)?

Arizona environmental activist Steve Brittle yesterday posted to Facebook that he filed a complaint against Herrod because of this political activity. The complaint was dismissed but immediately thereafter, Herrod resigned his spot on the CAP board.

Does not Judge Michael Herrod's OWN political involvement in CAP completely undermine MacEachern's claim that the campaign to deny him retention has nothing to do with the judge himself?

Enjoy this song for a moment. Then consider why Judge Herrod's involvement in CAP matters.




The Center for Arizona Policy is a Christian Dominionist advocacy organization.

One of CAP's primary areas of focus is on eliminating the right of women to exercise individual sovereignty, or ownership of her own person. Of course, they would rather not have people recognize that as their intent. On CAP's page on Defending Life,

Promoting life is all about standing for those whose voices have been silenced. From the preborn child, to the medically incapacitated, to the young woman with a crisis pregnancy, creating a culture of life in Arizona is critical to protecting the most vulnerable in our society and is central to the mission of Center for Arizona Policy (CAP).

We may never fully know the devastating impact the 1973 Supreme Court decision Roe v. Wade has had on our nation. Yet as the dangerous practices of the abortion industry are being exposed and the stories of men and women who have been forever scarred by abortion are told, more people are beginning to understand the consequences of abortion on demand.

If the Herrod's were at all concerned about individual sovereignty, they could focus their effort on measures to reduce the need for abortion services. But that would require them to acknowledge that the government they want to establish has no right to tell a woman when she is or is not allowed to have sex. They could focus instead on making birth control and contraceptives available to young people.

The bottom line is that Cathi and Michael Herrod need to get the message the women in the video are trying to send them.

By the way, MacEachern seems to suffer from selective amnesia. The Center for Arizona Policy paid for Cathi Herrod to put the following blurb in the official publicity pamphlet advocating passage of the 2012 Proposition 115.

Vote "Yes" on Proposition 115! This measure is a step forward to improve the accountability and transparency of how judges are selected in Arizona.

It's important to note that the measure is supported by judges and attorneys. Proposition 115 is a consensus measure agreed to by judges at every level, the State Bar of Arizona, and legislators from both major political parties. As an attorney and longtime advocate of judicial reform, I support Proposition 115 because it offers reasonable and necessary changes to the current system.

Proposition 115 improves judicial selection by making these needed changes:

- Removes the requirement that the judicial nominees be selected according to party affiliation. Party affiliation should not be a factor in evaluating the qualifications of judges. This requirement has often resulted in limiting the number of qualified individuals who apply for and who are nominated for judicial positions.

- Increases the number of qualified, meritorious judicial nominees sent to the Governor. The current system, whereby the selection commissions often limit the number of nominees to three, unnecessarily limits the nominees available to the Governor who is duly elected by the people. Using commissions to limit those they deem "meritorious" is one of the biggest concerns about the current system. Proposition 115 fixes this issue.

-Expands the process for nominating attorney members to serve on the commission thereby making the process more accountable to the people.

Whether you favor the current merit selection process, election of judges, or a different federal model to select judges, I urge you to vote YES on 115. For more information on judicial selection in Arizona, visit azvoterguide.com.

Cathi Herrod, Esq., President, Center for Arizona Policy, Phoenix

Paid for by Center for Arizona Policy

She didn't call attention to, but no doubt was fully aware that Prop. 115 sought to amend the Arizona Constitution Article VI, Section 42 on Retention evaluation of justices and judges. Currently that section states,

The supreme court shall adopt, after public hearings, and administer for all justices and judges who file a declaration to be retained in office, a process, established by court rules for evaluating judicial performance. The rules shall include written performance standards and performance reviews which survey opinions of persons who have knowledge of the justice's or judge's performance. The public shall be afforded a full and fair opportunity for participation in the evaluation process through public hearings, dissemination of evaluation reports to voters and any other methods as the court deems advisable. 

Cathi Herrod wanted this language added to Section 42,

B. THE SUPREME COURT SHALL MAKE EVERY WRITTEN OPINION OR ORDER THAT IS ISSUED BY A JUDGE OF A COURT OF RECORD, THAT RESOLVES A CONTESTED MATTER OF LAW AND THAT IS NOT SEALED OR CONFIDENTIAL PURSUANT TO LAW ELECTRONICALLY ACCESSIBLE TO THE PUBLIC THROUGH THE SUPREME COURT'S WEBSITE.

C. NOT LATER THAN SIXTY DAYS PRECEDING THE REGULAR PRIMARY ELECTION THE SUPREME COURT SHALL TRANSMIT A COPY OF THE JUDICIAL PERFORMANCE REVIEW OF EACH JUSTICE AND JUDGE WHO IS UP FOR RETENTION TO THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES. NOT LATER THAN SIXTY DAYS PRECEDING THE REGULAR GENERAL ELECTION FOR THE RETENTION OF JUSTICES AND JUDGES, A JOINT LEGISLATIVE COMMITTEE CONSISTING OF THE SENATE JUDICIARY COMMITTEE AND THE HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE, OR THEIR SUCCESSOR COMMITTEES, MAY MEET AND TAKE TESTIMONY ON THE JUSTICES AND JUDGES WHO ARE UP FOR RETENTION.

Shouldn't Mrs. Herrod have really been more careful in 2012 about what she was asking voters? Despite the failure of Prop. 115, she's getting what she asked for with the voters demanding now that Michael Herrod be removed from office.

Make no mistake, the Herrods will not suffer financially when he's removed from the bench. He'll be able to (lawfully) make more money than he does as a judge. What they will suffer is the people reclaiming the authority from one Christian Dominionist judge to further hinder the freedoms of Arizona citizens. I'm not suggesting I know anything about how he has exercised his authority or about the decisions he has made. But his political activity is political activity.

Nobody could rightfully imply that Michael Herrod controls anything his wife does. But it's not too difficult to imagine them sitting down to dinner and talking about what he has learned in his time on the bench. What new ideas might he give her for a new piece of legislation to further undermine womens' rights?

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NOTE: Rule 4.1 includes this language (in comment paragraph 7)

A judge or judicial candidate must not become involved in, or publicly associated with, a family member's political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take and should urge members of their families to take reasonable steps to avoid any implication that the judge or judicial candidate endorses any family member's candidacy or other political activity. 

What constitutes reasonable steps? From the American Bar Association in 2010,

Once upon a time, firms built “Chinese Walls”—a barrier between the conflicted attorney and the rest of the firm. The theory was that because the conflicted attorney did not see any memorandums or documents or anything else from the current case, the firm no longer had a conflict and could undertake representation of the client causing the conflict. The time of the Chinese Wall has passed, however. 

How can anything resembling the Chinese Wall be possible with two attorneys, Cathi and Michael, one an aggressive political lobbyist, the other a judge, sharing a home and a dinner table?

Michael Herrod should not have been appointed to the Superior Court bench in the first place. He was appointed (by Jan Brewer) in 2011. The fact that Brewer's press release on the 2011 appointment conspicuously fails to disclose Herrod's connection to his wife's political activity makes the cronyism incredibly conspicuous.

But having been appointed, it is most definitely within the appropriate scope of the voters of Maricopa County to hold him ACCOUNTABLE for his violation of the Arizona Code of Judicial Conduct.

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Mother Jones has a story that's intriguingly timely for this situation.

A paragraph from This Is How Judges Humiliate Pregnant Teens Who Want Abortions illustrates the significance of having Michael Herrod make decisions on the Family Court bench.

It isn't supposed to be this way. In 1979, the Supreme Court ruled that a girl's parents can't exercise an absolute veto over her right to an abortion: States requiring parental notification or consent had to provide an escape hatch. The court did not mandate what form this escape hatch should take. Maine, for example, allows a physician to decide whether the minor is competent enough to make her own decision. But that's not good enough for anti-abortion activists. Led by Americans United for Life, the legislative wing of the pro-life movement, they've advanced laws to put the decision in the hands of judges instead.

UPDATE        UPDATE       UPDATE

This afternoon, a JoycevsJesus posted a comment questioning the veracity of the allegation about Michael Herrod. I replied to the comment by referring to the image embedded in this post which contains the text of a complaint filed by a citizen with the Commission on Judicial Conduct. That complaint indicates the citizen had personally inspected IRS tax filings during a visit to the office of the Center for Arizona Policy. That's more than just speculation.

However, record of the CAPs annual filings with the Arizona Corporation Commission further document Mike Herrod's political activity as a member of the CAP Board of Directors. Mr. Herrod, according to documents linked in the original post, was appointed to the Superior Court bench in May 2011 by Jan Brewer. The image below is of CAPs annual filings dated May 11, 2011, the day the Corporation Commission received the report.

The press release from Gov. Brewer's office -- announcing the appointment of Mike Herrod to the bench -- is dated May 13, 2011.

In addition to the previously reported documentation, this document should remove all doubt.