By Carol Turoff
The February 2006 issue of Arizona Attorney magazine features an intriguing cover story and accompanying special section titled, Fair Courts Under Fire. The cover illustration depicts a courthouse ablaze. If the intent was to inflame, then it is surely time to secure the deluge nozzle to the hydrant.
Merit selection of judges is the issue. Author and flame-thrower is lawyer Ted Schmidt. In addressing what he terms “the stench of judicial campaigning,” Schmidt spends six interminable pages detailing costs involved in judicial elections and the superiority of the bench in jurisdictions where “merit” is the determiner. Nearly hidden in the smoldering ashes of his article are the perceived villains, lurking in the darkness to lay torch to the marvel of merit selection: “value voters.” These frenzied folks he describes as flexing their political muscle, are driven by “hot-button” issues, such as abortion, Fourth Amendment concerns and separation of church and state. They care not for competency, but are driven by right-wing ideology. And when these citizen-zealots speak in terms of accountability, they have the temerity to think that they are the ones to whom public servants should be accountable. Fancy that!
Accountability is an interesting topic. For the sake of argument, let’s speak in terms of legislators rather than judges. Since legislators are elected from districts and people of various parties cast ballots, to whom is the elected official actually accountable? And on which issue? If half of his constituents agree with his views, does the other half have the authority to oust him? Accountability is a word that is tossed around with ease and means little. It is of no consequence, nor should it be, when speaking of the judiciary, since judges are charged with interpreting the law rather than crafting it. Their only accountability should be to the Constitution rather than the citizenry. The fantasy of crazed “value-voters” desirous of retooling merit selection is a smoke screen meant to conceal bona fide objections to the current system.
It is important to remember that this esteemed process of judicial selection is in use in just two of Arizona’s fifteen counties. There is currently a 250,000 population threshold. Since exceeding that number would throw more counties into the mix, why are those counties nearing that magic figure fighting tooth and nail to raise the limit and retain the right to elect their judges? A bill introduced this session would raise the population ceiling to 600,000, eliminating the anxiety of having this plan thrust upon counties with burgeoning populations. If Arizona’s judicial system is, as Schmidt zealously concludes, “envied and copied worldwide,” why the concern? Surely the citizens of the state would be aware of the benefits after 32 years under such an exemplary arrangement.
And what about the elected judges in thirteen of Arizona’s counties? When we hear the proponents of merit selection extol its virtues, they speak glowingly of “Arizona’s judicial selection system,” failing to mention that only two counties incorporate the plan. Are the judges in the vast majority of our counties inferior to those who reside in Maricopa and Pima Counties? If so, why aren’t they excluded from the judicial pay and benefits packages until they shape up? Such an absurdity isn’t considered because the judges in thirteen of Arizona’s fifteen counties are as competent, scholarly and worthy of respect as those who are selected by a sculpted panel rather than the citizens. The problem is not with the judges; rather it lies with the process.
Merit selection of judges is a topic with which I have more than just a passing interest. I was appointed by two governors, confirmed by two senate judiciary committees and fulfilled two four-year terms on the Commission on Appellate Court Appointments, vetting and interviewing applicants for Arizona’s Courts of Appeals and Supreme Court. Serving with three voting and chairing chief justices, I went through the metamorphic stages from a steadfast supporter of the system to the conviction that it was in need of a bandage, but not major surgery. Ultimately, I came to the conclusion that the practice is in need of an overhaul.
Observing the machinations of the system described as “removing politics from the process” is a sight to behold. It was, to use the pyrotechnic terminology favored by Arizona Attorney, a baptismal by fire. Each of the voting chief justices exerted intense influence on the commission leaving little doubt as to which candidates had their support. The spectacle of a chief justice serving as a voting chair when the vacancy exists on the supreme court clearly points to the untoward aspect of a justice participating in the selection of his or her own colleague. Further, to imply that merit selection removes judges from the political realm is blatantly untrue.
Every judicial applicant has a political designation alongside their name on the application. Question six (given first-page prominence out of 72 questions) requires that the applicant “list your present and former political party registrations and approximate dates of each.” Additionally, all commissioners are appointed to fill political designations.
The commissions are constitutionally mandated to send a list of “not more than 2/3 of one political party” to the governor–also a partisan–who makes the final selection. So much for the absence of politics in the process. And Gov. Napolitano, unlike her predecessors, has politicized the system to a far greater extent by appointing largely within the confines of her own party. The resumes of her two appointments to the Supreme Court include significant Democrat party involvement. She has also appointed the former executive director of the state Democrat party and the brother of the Chairman of the Pima County Democrat party to judgeships.
Schmidt writes that since 1974 governors have appointed from “another political party 26 percent” of the time. He conveniently avoids mentioning that Republican governors have contributed to that total in far greater numbers than Democrats. In fact, Republican Gov. Jane Hull took the previously unthinkable and never since replicated action, of appointing across party lines when she made her first appointment to the often policy-making Arizona Supreme Court. Hull’s long-time friend, Ruth McGregor, is now Arizona‘s Chief Justice.
This same justice has contracted, using taxpayer dollars, for three years at $9000 a month, with a prominent political public relations firm to explain to the citizens of Arizona how the courts do their job and to relentlessly promote merit selection. The courts are overworked and understaffed. New trial court divisions are sorely needed. Regardless of glossy presentations to the contrary, arrogance appears to take center stage when it comes to the interaction of political gamesmanship with the courts. In spite of vital needs at the trial court level, justices and the phalanx of lobbyists in their employ can be relied upon to make their annual trek to the legislative chambers, requesting budget increases which they squander on expensive public relations campaigns. When there is enough of an overage in the coffers to pay for image consulting, these requests should be carefully weighed.
Selection panels were enlarged in 1992, increasing the number of public members and giving the chief or designated justice a vote. This action was far from serendipitous. What author Schmidt fails to mention is the undue influence of such an authority over the business of judicial selection. Lawyer members are often reluctant to vote against the highest ranking judge in the state and non-lawyer or public members, who usually have no independent knowledge of either the judiciary or the applicants, are greatly influenced by Arizona’s most prominent and powerful judicial officer.
In truth, most judges themselves are unaware of what is entailed in judicial selection. Once selected and robed, the system that put them on the bench takes on a glow that belies the stark political realities behind the scenes.
Schmidt concludes his article with a “call to action,” exhorting those in the legal community to educate their friends, family and associates regarding the virtues of merit selection. “Inform your clients, especially those with political influence, contact your elected officials, chamber of commerce and business groups,” he implores. “Volunteer to speak at schools, clubs and other civic organizations.” There is no denying that merely questioning merit selection generates a four-alarm fire.
The flames shooting from the courthouse depicted on the cover of Arizona Attorney magazine are indisputable. It is the cause of that inferno that is in question.
Profile: Carol Turoff is a former two-term member of the Commission on Appellate Court Appointments. During her eight years on the commission, she participated in the selection of four of the five current Arizona Supreme Court Justices as well as 17 judges on both Division I and II of the Arizona Court of Appeals. Appointed by two governors, Turoff served with three chairing Supreme Court Justices.