An independent judiciary is essential to our democracy. It needs to be free from interference, threats and retaliation.
For the better part of the last 50 years, Arizona’s merit system on the selection of judges — which includes a public vote on the retention of judges every few years — has served us well, though not perfectly.
Now, this system is under assault by those who are using retention elections to target judges for removal over rulings they do not like.
Arizona judges are under threat
In 2022, three Superior Court judges were ousted from office — two of them despite recommendations for retention by the Commission on Judicial Performance Review (JPR), an independent body of judges, attorneys and citizen members that evaluates their work and conduct.
The commission’s assessments , included in the election publicity pamphlet, have for decades guided voters.
An even greater groundswell of activism is mounting this year against Arizona Supreme Court Justices Clint Bolick and Kathryn King because of the court’s opinion on which of the state’s competing abortion laws took precedence — a conflict lawmakers could have settled themselves.
The threat of judges getting booted is real.
In response, the Republican-controlled Legislature referred Proposition 137 to the ballot, which they say will stop the targeting of judges for removal and the politicizing of the judiciary.
But don’t be fooled.
Far from helping, the proposition — referred to the Nov. 5 ballot on a party-line vote — would foul up the merit system on judges beyond repair.
Proposition 137 is the wrong fix
To insulate judges, Proposition 137 calls for :
- eliminating retention elections for all but rare instances of a judge who’s been convicted of a felony or a crime involving fraud. (Or, odder still, a judge who’s undergone bankruptcy or a foreclosure.)
- authorizing each chamber of the Legislature to appoint a member to the Judicial Performance Review commission.
- allowing any lawmaker to file a complaint of malfeasance against a judge and prompt the commission to investigate.
Instead of protecting and fostering an independent judiciary, this constitutional change would inject deeper polarization and direct interference from any of the 90 members of the Legislature.
Most troubling, Proposition 137 would nullify any result that ousts a judge in the Nov. 5 election.
That means it would dismiss voters’ wishes and retroactively reinstate any judge who loses the bid for retention. Critics are right to question whether Republican lawmakers’ immediate motivation for the measure is to protect Bolick and King .
Even the Arizona Judges Association — whose members became alarmed following the ouster of judges two years ago and had a hand in crafting the framework of the initial proposal — couldn’t get behind Proposition 137.
Measure would only make politicization worse
Proposition 137 won’t cure what ails our divisive and retaliatory politics. It’ll only worsen the symptoms and the outcomes.
We see the need for Arizona to shield its judges from political attacks. But this ballot measure is not the answer.
Judicial selection, in which voters are given the opportunity to affirm or reject the fitness of judges for the bench, is turning into a partisan assault that would force judges to raise money and develop a political campaign to keep their jobs.
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For judges to do that is to compromise their objectivity on various issues that come before the court. They are essentially handcuffed from talking freely about cases and issues that might be central to a political campaign that targets them.
Sitting judges today have told us that such an environment will destroy Arizona’s merit selection and, ultimately, the court.
The most talented people in the legal world will not apply to become judges because they will not want to subject themselves to the circus that ensues every time their name is on the ballot.
Judges don't make law. They interpret it
Part of the challenge rests with all of us — including civic leaders, educators, journalists, judges and lawmakers — to raise the legal literacy in this state and help the public better understand that the judiciary doesn’t enact law or set policy.
Judges shouldn’t be blamed for the controversies they are asked to settle by interpreting the law.
Which is what the state Supreme Court did in upholding the 1864 near-total abortion ban. The justices did not adopt the policy — despite the narrative being pushed by progressive groups in calling for the ouster of Justices Bolick and King.
Judges don’t represent groups or interests. They don’t represent the people, either; our elected representatives do.
Rather, as arbiters of justice, judges are called to apply impartiality, dispassion and legal reasoning.
As Bolick and King did, along with two other justices, in reaching the court’s decision on the 1864 abortion law .
The high court was performing the legal housekeeping necessary after the Dobbs decision turned the question of abortion back to the states.
Reject Proposition 137, then talk about reform
It’s cynical of Republican lawmakers to put forward Proposition 137 to staunch the political backlash against the judiciary. The GOP-led Legislature and the governor sat on their hands, then blamed the justices for interpreting antiquated law and letting them take the heat.
Lawmakers met urgency with cowardice and waited weeks before finally repealing the 1864 law .
Ultimately, Arizonans will determine state abortion law.
Having said that, Arizona’s merit system can benefit from reforms. Among those that deserve consideration: reining in the vast powers of the governor in the selection of judges.
Under the state Constitution, judicial vacancies in counties with a population of 250,000 or more are filled with the help of a nominating commission made up of 16 nonpartisan public members and attorneys who are appointed by the governor. The commission vets and interviews applicants, then forwards a short list of finalists for the governor to select.
The judges are reviewed by the Judicial Performance Review commission and come up for retention votes by Arizonans two years following their appointment and thereafter, every four years (for trial judges) or six years (for appellate judges).
The targeting of the two justices stems in no small part from Republican Gov. Doug Ducey’s groundless decision in 2016 to expand the Supreme Court and his manipulation of the nominating commission to install Bill Montgomery three years later to fill a vacancy.
Arizona should start the process of improving the process — once voters reject the ill-conceived, partisan-driven and risky reform that is Proposition 137.
This is an opinion of The Arizona Republic’s editorial board .
This article originally appeared on Arizona Republic: Opinion: Arizona judges are under threat. This is the wrong way to protect them
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