Gov. Brewer Taps Illegal Immigration Advocate To Help Select Next Justice of Arizona Supreme Court

Recently, an opening on the AZ Supreme Court was created by Chief Justice McGregor’s retirement announcement.  This opening on the Supreme Court gives conservatives their first chance during the Brewer administration to begin moving the Arizona Supreme Court to the right by replacing a liberal justice with a conservative justice.

Gov. Brewer, however, is helping to keep the Court stocked with liberal justices by appointing Michael Sillyman, an illegal immigration advocate and liberal democrat, to the Commission that will select the next Justice of the Arizona Supreme Court.

In Arizona, judges are selected using the following process:  a Commission, appointed by the Governor and confirmed by the Senate, selects a slate of nominees for the open judgeship,  The Governor is then required to appoint the new judge from this slate of nominees.  Thus, if the Commission that selects the nominees is stacked with liberals, the commission will send the Governor a list of liberal nominees and the Governor will be forced to select the new judge from the list of liberals.

Michael Sillyman, Gov. Brewer’s newest appointment to the Commission on Appellate Court Appointments, is a liberal democrat that represented the Mexican American Legal Defense and Educational Fund (MALDEF) in its unsucessful effort to block Prop 200 in 2004.  Mr. Sillyman is also a donor to Janet Napolitano, Terry Goddard, and Al Gore.  This appointment is outrageous.  A Republican Governor should appoint conservatives to this commission, not radical liberal democrats.  Under the rules governing appointments, Gov. Brewer could have selected a conservative Republican for the slot but instead decided to appoint an illegal immigration advocate.

The good news is, while the Gov. Brewer has appointed Mr. Sillyman, the Senate has yet to confirm this nominee.  This nominee is currently pending in the Senate Judiciary Committee.  Hopefully, Republican Judiciary committee members, Russell Pierce, Jonathan Paton, John Huppenthal, and Chuck Gray will reject this nominee.  It would be hard to believe that Russell Pierce would not stop this nominee because this nominee represents everything he has spent years fighting.

Also, Mr. Silyman is not the only bad appointee that Gov. Brewer has sent to the AZ Senate.  In addition to Mr. Sillyman, Gov. Brewer has appointed two other liberal (Ronald Reinstein and Karen Smith) to the Commission that select judges in Maricopa County.  Retired Judge Reinstein was considered one of the most liberal judges during his years on the Court.  Karen Smith was Deputy Director of the Arizona Department of Water during the Napolitano administration and is a donor to Napolitano.    With Republican appointments like this to the commissions that select judges, it is no wonder that most of the judges in this state are liberals.  Hopefully, one day, Arizona will have a Republican governor and a Republican Senate willing to appoint conservative and not just hand the Courts to the liberals.


  1. I don’t know the other two people you mentioned but having practiced in front of Ron Reinstein I don’t understand how you can say he was one of the most liberal judges at all. He had many run ins with Judge Mundell who is very liberal. He is a national expert on DNA and was considered a good sentencer by most prosecutors. He is a formal prosecutor himself and most people I know who practiced before him think he is a great pick for the commission.

  2. Time For a Change says

    Reinstein is not a bad choice, but the aptly named Sillyman, from any Republican governor, is absolutely outrageous.

  3. Thomas Paine, do you have an axe to grind or what? At least tell the whole story. Michael Sillyman is nominated for the slot filled by the State Bar of Arizona. Under the Arizona Constitution, the State Bar sends one name to the Governor to nominate to the Commission. The State Bar sent one name . . . Michael Sillyman. The Governor had to choose Sillyman or leave a Napolitano appointee. If she rejected Sillyman, the Napolitano appointee remains in place until the Bar would send another name (who knows when) who would most likely be just as liberal. The Governor’s choice was to keep a Napolitano appointee or Sillyman. What stinks is the constitutional system created by lawyers to empower the State Bar to make these decisions. That is where the fault lies.

  4. Veritas Vincit says

    Jay, still it would have been a media op to slam the Sillyman nominee back to the State Bar with the admonition to send a “balanced” nominee rather than one so obviously biased.

    What’s wrong with nominees who have a balanced record? No Progressives and equally no Wingnuts.

  5. E. Bicknell says

    Veritias Vincit,
    Talk about bias,,,why use the term “wingnuts” why not just use a word that better fits people like me which is conservative such as you used for your people, the word,”progressives” actually your people are socialists.
    Now to the so called appointment of Sillyman,
    She the gov., should know that will not pass the Senate committee. why even try. Her tax increase and these latest appointments lead me and I am sure others, to start looking for an other choice for Gov. come 2010.

    As to the Constitution and the Board that nominates to Gov That should be changed ASAP.

  6. Jay T.
    Yes and No- Gov. Brewer has the option to actively inform, and state ahead of the nomination that she wants A) More than one name B) Bipartisanship of nominees from each ‘side’. There is an active approach to executive branch governance, and there is a passive take.

    I respect Governor Brewer and grant her all credit for taking on a thankless job. I would also ask her to NOT pocket veto her term by allowing all decisions to come over her like a noxious fog, knocking out her common sense.
    One of the greatest things of a one term choice, is that others have little power over you. Why allow the one term to seem like half, or abandoned, and left out to die?

    Finally, if seeking more than one term, is this how you go about courting constituents?

  7. Iris Lynch says

    I am dismayed by the choice, as I had greater faith in Governor Brewer. Other than that, I personally do not know enough about the process to comment, but I am certain that Russell PEARCE (correct spelling) will.

  8. I cannot believe that a Republican Govenor would pull such a sneaky move as this. You do this and My vote and as many as I can sway will vote against you in the next election. Your aiming us right toward the same pitfall as California. What next, your going to change parties?

  9. #3 is correct. Brewer has little choice being that this process is a constitutional one. The confirmation will kill his placement and Brewer should demand more than one suggestion from the Bar.

    This has little to nothing to do with Brewer though.

  10. Brewer is trying my patience with this one. I think we may need to focus the next event/march towards her. She’s making bad policy moves. She ran as a Republican…she better start acting like one.

  11. Jay T wrote:

    “Thomas Paine, do you have an axe to grind or what? . . . The Governor had to choose Sillyman or leave a Napolitano appointee. If she rejected Sillyman, the Napolitano appointee remains in place until the Bar would send another name (who knows when) who would most likely be just as liberal.”

    What makes you think that Napolitano’s nominee, Albert Flores, continues to serve until his replacement is confirmed? The relevant provision of the in the AZ Constitution says: “Attorney members of the commission shall serve staggered four-year terms.” Mr. Flores has served four years, and his term is up. Consequently, his position goes vacant until his replacement is confirmed.

    A contrary rule would mean that a recalcitrant Senate could keep its preferred commissioners on the Appellate Commission perpetually simply by refusing to confirm their successors.

    What really concerns me about this whole ordeal is that either the Brewer team didn’t pick up on this or they didn’t think we would.

  12. John is wrong. There is another provision in law that states that all commission vacancies continue to be held as long as the member is willing and no replacement has been found. Read the statutes, John, they’re out there.

    It was stated pretty clearly in the Yellow Sheets this morning that the bar submitted only one name. Paton has no inclination to confirm Sillyman in Judiciary and has made that fairly clear to anyone who will ask. Getting mad at the Governor for this is stupid and it points to a larger problem that exists: “Republicans” attacking Republicans. I don’t particularly like Brewers’ tax hike idea, but otherwise she’s doing a good job. Her first appointment to the bench (Maricopa County Superior Court) was James Beene who is about as solid a conservative Republican as they come–lifelong prosecutor, in charge of Andy Thomas’ appelate division. He was supported strongly by CAP. He was rejected twice by Napolitano for purely partisan reasons. He made it through on this one because we finally have a Republican governor. Personally, it is in the arena of judges that a governor has the longest legacy. Brewer has gotten off to a good start with this pick. I wish the “Thomas Paine” characters would stop the circular firing squad for a change and recognize that we are already getting good judges and the legislature is not confirming bad commissioners because we have a Republican governor and legilature actually working together.

  13. #6 – Why do you assume that Brewer has not taken your recommended “active” approach and not the “passive” approach you ascribe to her? FYI – The Yellow Sheet Report quotes Paul Senseman, Brewer’s spokesperson, as saying that Brewer has already written to the State Bar to request a “true balance of more than one option and not just one name” for nominees to the Commission.

    Overall, my complaint was with the blog entry not reporting the whole story.

  14. Jake,

    (1) You say that there is a statute that says “all commission vacancies continue to be held as long as the member is willing and no replacement has been found.” What statute(s) are you referring to? I research statutes frequently and haven’t been able to identify any such statute.

    (2) More importantly, why do you think that a statute (assuming one exists) is relevant to the term of a constitutionally created office, especially when the term of that office is spelled out in the Constitution itself. Article 6, Section 36 of the Arizona Constitution says that attorney members of the Appellate Commission serve “staggered four-year terms.” Can the legislature change the term of office for the Governor and other constitutionally created offices?

    (3) So, you think that the Bar, the Governor, and the Senate can each unilaterally keep Mr. Flores on the Commission perpetually by either refusing to forward (the Bar), refusing to appoint (the Governor) or refusing to confirm (the Senate) his replacement? Why?

  15. Apparently you don’t research them or the constitution enough…

    First of all in the constitution:

    Article 22, section 13.

    “Continuation in office until qualification of successor

    “Section 13. The term of office of every officer to be elected or appointed under this Constitution or the laws of Arizona shall extend until his successor shall be elected and shall qualify.

    Secondly, it is in statute:


    38-295. Term of office; discharge of official duties after expiration of term; appointment to fill unexpired term

    B. Every officer shall continue to discharge the duties of the office, although the term has expired, until a successor has qualified. The discharge of the duties of office for appointments requiring senate confirmation shall be governed by section 38-211.

  16. My answer to your last question is “yes”. Don’t believe me? The Pima County Trial Court Commission, for example, has not had a replacement for most of their seats on their commission because they simply have never bothered to convene a nominating committee and send names up to the Governor at all, thereby keeping the current people on. In response, Sen. Paton has been working on a way to withhold funding for the county until they do that. In one case, a Republican slot on the commission in Valadez’ district has never been filled since the inception of the Merit Selection System in 1992 and others have gone beyond their terms for several years. Nothing had been done about that until now when we actually have a Republican governor.

  17. Jake,

    Thank you for answering the first and third questions I asked in comment 14 above. (I wish you would have answered my second question, or at least attempted an answer, but I’ll get into that a little bit later.) For now, I want to thank you for pointing me to the generic holdover provisions in the Arizona Constitution and Statutes. I was unaware of those, and I thank you for pointing them out to me.

    However, I still don’t understand why you and “Jay T” think that Mr. Flores gets to continue to serve on the Appellate Commission until his replacement is named and confirmed by the Senate.

    Let me explain:

    Article 11, Section 13 of the Arizona Constitution does not apply in this situation for two reasons. First, the section applies exclusively to elective offices that are regularly filled by election and only occasionally filled by appointment. See Sweeney v. State, 23 Ariz. 435, 440 (1922). It does not apply to appointive offices like the Appellate Commission.

    Second, not only does Article 6, Section 36 specify a four-year term for attorney members of the Appellate Commission, it also provides, in subsection (g) that “members currently serving on the commission may continue to serve until the expiration of their normal terms.” Thus, the generic holdover provision is trumped by a provision specific to the Appellate Commission limiting the terms of attorney members to their normal, four-year terms.

    As for ARS §§ 38-295 and 38-211, why do you think they are relevant to a constitutionally created office, where the term of that office has been affixed by Arizona voters at the ballot box? (I really wish you would have attempted an answer to my second question above.)

    Finally, as to the situation down in Pima County, someone who is upset about the situation and who has standing object simply needs to bring a quo warranto action to oust the wrongful holdovers.

  18. Jake,

    Article 22, Section 13 of the Arizona Constitution doesn’t apply either!

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