Arizona voters will soon decide if judges who display “good behavior” should be given indefinite terms.
Republicans in the Arizona House of Representatives and Senate passed SCR 1044 Wednesday on party lines. The measure would subject Supreme Court Justices, judges of appellate courts and some superior court judges to a retention vote only under limited circumstances, including if they’re convicted of a felony offense, a crime of fraud or dishonesty or they are determined by the Commission on Judicial Performance Review to not meet judicial performance standards.
Opponents of the measure argue it would undermine the ability of voters to hold judges accountable, particularly after the court’s April decision to uphold the 1864 abortion ban.
“This is what authoritarianism looks like, folks. It’s terrifying,” said Rep. Analise Ortiz, D-Phoenix, on the House floor Wednesday.
Democrats also called for Sen. Shawna Bolick, R-Phoenix, to recuse herself from the Senate vote on the measure. Bolick is married to Arizona Supreme Court Justice Clint Bolick, who will be on the November ballot and who was one of the four justices who sided with the majority in the decision to uphold an 1864 abortion ban. She did not recuse herself but had she done so, the measure would have failed in the Senate.
“When you share one pillow, I think it’s a conflict of interest,” Sen. Theresa Hathathlie, D-Tuba City said.
Senate President Warren Petersen, R-Gilbert, defended Shawna Bolick’s vote and said she doesn’t have a conflict of interest because of the numerous people that would be affected by the ballot referral.
The measure comes with a retroactivity clause to Nov. 1, 2024, four days before the general election where Clint Bolick and Supreme Court Justice Kathryn King will be up for retention. If voters vote either justice out of office and pass the ballot referral, then the justices will be allowed to remain on the court.
Republicans say a justice’s presence on a court shouldn’t be decided by partisan politics like the abortion issue, and it would shorten the length of voters’ ballots, which in years past have been filled with judicial retention elections that many voters didn’t participate in.
“We cannot pick and choose justices based on decisions we agree or disagree with. I disagreed with the court on the abortion decision and I paid the price for it,” Gress said.
Gress is facing heavy backlash from conservative groups and other Republican lawmakers for helping Democrats pass a bill that repealed the 1864 abortion ban. House Speaker Ben Toma, R-Peoria, removed Gress from the House Appropriations committee after the repeal bill passed the House.
Sen. David Gowan, R-Sierra Vista, said the measure also allows the Judicial Performance Review Commission to function independently.
In 2022, three judges were not retained by voters despite only one being deemed unfit for the bench by the commission. Clint Bolick submitted an opinion column to The Arizona Republic Monday and wrote that he’s being attacked by progressive groups despite being the only independent on the court and having numerous dissenting opinions.
“I cannot count the number of cases in which I have voted against my policy preferences,” Clint Bolick wrote.
The measure would also allow the chief justice of the Supreme Court to determine if a justice or a judge is subject to retention, unless the chief justice is the subject of a vote of retention. Then the determination would go to the vice chief justice.
Rep. Alexander Kolodin, R-Scottsdale, said the measure would cut down the number of judicial retention elections and it’s necessary because voters are tired of seeing pages of judicial elections on their ballots and many voters don’t even bother casting a vote in many of those races.
“There will be a smaller, more focused list of judges that voters will actually have time to research and examine and perhaps voters will actually be willing to fill out their ballots and weigh in on that,” Kolodin said.
An amendment to the bill specifies that “good behavior” is determined through the Arizona Constitution’s Articles on the Judicial Department and the Commission on Judicial Conduct. The House and Senate would also be permitted to appoint one member to the Commission on Judicial Performance Review.
During the House debate of the measure, Rep. Austin Smith, R-Wittman, invoked House Rule 22, which brings a debated motion back to a previous question of “Those in favor of ordering
the previous question will vote aye; those opposed will vote nay.” Smith’s motion effectively cut off debate on the measure.
“This is the exact kind of authoritarianism we’re talking about here,” Ortiz said of the debate ending.
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