Politically targeted justices limited in defending themselves

At the state’s annual judicial conference last June, an ethics director, a performance review commissioner and a political consultant advised judges to prepare to form campaign committees in 2024.

The warning, which came after three Superior Court judges were not retained by voters and a Supreme Court justice very narrowly stayed on the bench in 2022, was brushed off by some as an anomaly.

But others feared a coming wave.

“There were mixed feelings among the crowd,” April Elliot, executive director of the Arizona Commission on Judicial Conduct and staff director for the Judicial Ethics Advisory Committee, said.

As rising political tensions spilled in and out of the judiciary, the potential for targeted campaigns to unseat judges in the upcoming retention election became increasingly likely.

But now, a statewide campaign mounted earlier this week to unseat two state Supreme Court justices over their ruling allowing the 1864 abortion ban to stand seemed to have fired the proverbial starting gun, bringing the ethical and political contours of judicial campaigns and retention elections into full focus.

Judicial sources say the 2024 election could create a cycle of offensive campaigns and counter-campaigns riding along the political divide and will ultimately require some judges to form committees in defense of their place on the bench, all while staying in line with judicial ethics.

“This was something that we kind of hammered home ... at the judicial conference,” Elliot said. “It’s uncertain but be prepared. You don't want to be caught unprepared and then be unemployed come January 1.”

On April 22, Progress Arizona launched AZ Judge Guide, a campaign to unseat Arizona Supreme Court justices Kathryn King and Clint Bolick following their concurrence in the recent ruling upholding the 1864 abortion ban.

The campaign moves into the 2024 election with an intent to “leverage Arizona’s unique judicial retention elections as outlined in the state’s Constitution” to vote Bolick and King off the bench and see them replaced by appointees from Gov. Katie Hobbs.



“When judges overstep, Arizona’s Constitution empowers voters to step in,” Abigail Johnson, communications coordinator for Progress Arizona said in a written statement. “In extraordinary circumstances like the ones we are in today, removing judges who serve ideology over the people is not just a constitutional right, it is a civic duty. It’s up to voters to preserve the integrity and balance of the judicial system.”

Bolick and King have yet to establish campaign committees in response. But when the time comes, campaigning as a judge comes with ethical constraints tailored to uphold the appearance of an independent judiciary.

Elliot said the 2022 election, where three judges were not retained, and the current campaign track continues to veer off from the initial expectation of how judicial retention elections would play out in the state.

“When Arizona first moved to the merit selection and retention process, very early on, I don’t think anybody contemplated something like this. What judges running in retention elections were allowed to do was fairly limited,” Elliot said. “But over time, there have been targets, and that has been expanded.”

As it stands, judges in retention elections can form campaign committees. But judges cannot solicit donations, endorse or oppose candidates or make any pledge, statements or commitments that could stand to tarnish the appearance of judicial impartiality.

Judges can receive donations and endorsements, but Elliot noted a need to “be careful” about who and what provides support, saying the possibility for disqualification from cases down the line given any perceived conflict of interest.

And Elliot noted political party affiliation is not totally divorced from the judiciary, as judicial appointment recommendations go to the governor attached to a party and could either serve as a help or a hinderance, depending on the jurisdiction and scope of a judges’ election.

Direct challenges to judges and justices have been rare, though not unheard of, in the state.

Former Arizona Supreme Court Justice and Court of Appeals Judge John Pelander saw two unsuccessful attempts to see him off the bench during his tenure.

The first time Pelander went up for retention, he served as a judge on the Arizona Court of Appeals. He said his first retention cycle brought some flak from gun rights proponents. But he received advice not to engage, respond or combat the campaign against him.

“It'd be counterproductive,” Pelander said. “I came out just fine.”

But a second challenge to Pelander’s retention came around in 2012 from members of the Republican Party following a unanimous ruling allowing Proposition 121, a measure creating an open primary, to stay on the ballot despite allegations of fraudulent petition signatures.

Pelander was the only justice up for retention that year. And the effort opposing his retention prompted Pelander to, against his “instincts and better judgment,” form a campaign committee, which he noted he had “nothing to do with,” and hire political consultants to combat the effort.

“The advice I received from someone whom I trusted, is ‘you shouldn’t just sit on this, times have changed,’” Pelander said.

Pelander was overwhelmingly retained in 2012, receiving support from 73.94% of voters. But as he looks to the current cycle, he notes the “two justices in question today, like me, are somewhat out of their comfort zone.”

Going forward, he stressed the need for voters to look beyond the outcome of a single case.

“People need to take a step back, take a deep breath and look at the person’s entire record,” Pelander said. “If it’s a single opinion on an issue they care deeply about, I get it. But, even in that situation, read the opinion.”

Pelander added that campaigns against judges could continue to compound on all sides of the political spectrum and create “dangerous territory,” in preserving the independence of the judiciary.

“The last thing you want is judges having to put their fingers to the wind to assess the political consequences,” Pelander said.

 

 

 

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