Critiquing judges’ decisions valid in merit selection

I fully agree that Arizona’s Merit Selection system of nominating and retaining judges is worth preserving , but take strong exception to the implication that critiquing their decisions is politically motivated or unwarranted. In fact, the admirable judicial selection and retention system passed by Arizona voters in 1974 not only allows citizens to weigh in on judicial retention it requires it. One might presume that even 50 years ago folks like Sandra Day O’Connor (who championed this system) wanted the voters to be the final check and balance to prevent courts from becoming undemocratic. Although judges fulfill a very different role than those in the executive and legislative branches, they are nonetheless accountable to the people of this state.

It’s an affront to impartiality to claim that once the courts have been stacked with ideologically conservative judges , it’s now immaterial to take those ideologies into consideration. Like us all, judges are not blank slates nor are they ideologically neutral if that were the case, there would never be cause for dissent and judges would simply be “calling balls and strikes”. Laws may be unclear, in which case interpretation is a vital function of the judiciary.

The statewide group that I help run, Civic Engagement Beyond Voting , publishes Gavel Watch: A Guide to the Judges on Your Ballot , and does make retention recommendations based on the backgrounds, careers, and yes, decisions made by sitting judges. Our recommendations have fully as much relevance as the Federalist Society and other conservative special interests that have helped guide Republican governors’ decisions to appoint justices in Arizona and across the U.S.

For example, our recommendation not to retain Supreme Court Justice Bill Montgomery in the 2022 election cycle was based on his long history of bias against LGBTQ+ persons while he was Maricopa County attorney, as well as a culture of misconduct in the County Attorney’s Office during his tenure. His outspoken hostility toward abortion forced him to recuse from the recent abortion decision, but is clearly relevant to a retention vote.

While Montgomery received a “meets judicial standards” retention recommendation from the Judicial Performance Review Commission in 2022, it was his history of conduct in office that compelled us to recommend a “do not retain” vote. Furthermore, his appointment through a blatantly political reconfiguration of the Appellate Judicial Nominating Commission by then-Gov. Ducey, plus expansion of the Arizona Supreme Court against the court’s own opposition, laid bare the political motivations guiding his appointment in the first place.

When evaluating Justice Clint Bolick, it is relevant to take into consideration his extreme political positions prior to becoming a judge, as well as his court decisions. For instance, Arizona voters should have access to information regarding his previous record as vice president of litigation for the libertarian Goldwater Institute , his founding of the right-wing Institute for Justice , and his work establishing and litigating the diversion of public funds to private schools through voucher programs alongside Betsy DeVos. If those are your ideological leanings, you’ll be glad to vote to retain Justice Bolick; if they aren’t, you may want to vote no but both perspectives are relevant. And a “no” vote on those grounds is both valid and appropriate.

It’s also important to note that Justice Bolick has a history of decisions that have major implications on Arizonans well beyond this year’s abortion ruling:

• In 2022, Justice Bolick joined the court’s decision to toss Ducey’s “flat tax” from the ballot after advocates gathered hundreds of thousands of signatures to let Arizona voters weigh in on the measure. Five justices sided with Bolick’s former Goldwater Institute , which argued that tax measures are “immune from repeal by voters.” Now, the flat tax has created a $1.8 billion budget deficit .



• In 2019, Justice Bolick joined the c ourt’s 4-3 decision in the now infamous Brush & Nib case , which created a legal precedent allowing businesses to discriminate against LBGTQ+ persons that was upheld by the U.S. Supreme Court.



• In 2021, Justice Bolick joined the court’s action to overrule a lower court’s decision on Proposition 208, a major 2021 citizen-powered initiative to tax wealthier Arizonans and provide more than $800 million in funding to public education. The ruling that it was likely “unconstitutional” abandoned the court’s own precedent regarding severability to reach the desired outcome, as noted by Justice Ann Timmer in her dissent, granting lawmakers more power to undermine voter-approved measures they disapprove of.

Perhaps these rulings were in line with what voters want to see in their judges. Perhaps they are not. But the fact remains: Arizona voters have a right to weigh in on the retention of judges based on the Merit selection system and they should continue to have this right. And perhaps more importantly, they should have the right to exercise it however they see fit (and certainly without the narrow constraints suggested by a group of lawyers who regularly appear in front of these judges).

Cathy Sigmon is a co-founder of Civic Engagement Beyond Voting, a nonpartisan nonprofit organization dedicated to engaging people with their state and local government, and is also a co-founder of Save Our Schools Arizona.

 

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