Senate panel to consider new system for judge picks

Associated Press

PHOENIX — Retired U.S. Supreme Court Justice Sandra Day O’Connor has for years tried to convince states to adopt Arizona’s system of selecting judges, which aims to remove politics from the judiciary.

But a state Senate committee on Monday will consider asking voters to ditch that system and require judges be confirmed by the Senate every four years, a move supporters say would prevent judicial activism but which O’Connor called “a great step backwards.”

“We have an excellent judiciary at present, and in my opinion it would be against the best interests of Arizona to increase the partisanship in the selection of its judges,” O’Connor wrote in a letter to the Senate Judiciary Committee dated Feb. 4.

A former Arizona state senator, O’Connor in 1974 helped send to voters the referendum creating the existing judicial selection system, which supporters call “merit selection.” It applies to state appellate courts and trial courts in Maricopa and Pima counties, where the vast majority of Arizona’s judges work.

For each judicial vacancy, nonpartisan commissions review applications and send the three most qualified candidates to the governor, who selects one. Voters decide whether to retain judges or remove them from office.

Sen. Jack Harper, R-Surprise, proposes that judges instead be nominated by the governor and confirmed by the Senate, similar to the federal system. Judges would have to be reconfirmed by the Senate every four years.

Social conservatives have backed similar proposals in the past, saying legislative oversight would provide a check and balance on the judiciary and help weed out judges who might overturn policies popular with voters.

“When judges and lawyers pick the new judges, the temptation to judicial activism is almost insurmountable, as the intended checks and balances of the system have effectively been removed,” Len Munsil, former president of the social conservative Center for Arizona Policy and 2008 Republican nominee for governor, said in an e-mail.

The current nominating commissions are made up of 15 people, five of them lawyers. The governor fills vacancies on the commissions from a pool of candidates nominated by the Arizona State Bar. A separate commission evaluates the judges and provides the results to voters.

“What we have now is dominated by the State Bar,” Harper said. “They are liberal, activist, and out of touch with the general society.”

Harper declined to identify any specific cases in which Arizona judges have erred, saying he wanted to stick to his “talking points.”

John Phelps, chief executive of the Arizona State Bar, said his organization doesn’t have undue influence over the selection of judges. He said the bar nominates diverse candidates of all political leanings for the selection commissions.

The bar doesn’t vet, endorse or oppose potential judges and has no communication with the commissions regarding applicants, he said.

“If I felt that I was part of an organization that was politicizing this process, I would resign,” said Phelps, who has served in the administrations of former President George W. Bush, a Republican, and former Gov. Janet Napolitano, a Democrat.

If Harper’s resolution passes the House and Senate, Arizona voters would decide in November whether to keep the current system or adopt the one Harper proposes. Because it’s a ballot referendum, the measure does not require the signature of Gov. Jan Brewer.

The Legislature can’t repeal the current system without voter approval because it was initially created by voters.

Arizona Chief Justice Rebecca White Berch said Arizona’s judiciary is among the best in the nation and Harper’s bill seeks to fix a system that isn’t broken.

Berch said she worries the proposed reconfirmation requirement would politicize the process and force judges to think about pleasing senators instead of sticking to the law.

“That’s not how the rule of law is supposed to operate,” Berch said. “There ceases to be a rule of law at that point.”