Voters are going to decide in November whether to give Gov. Jan Brewer and her successors more power to choose who sits on the bench.
Until 1974 all judges in Arizona were elected, just like any other politician. That year voters approved what is known as a merit selection system for the Supreme Court, Court of Appeals and the superior courts in Maricopa and Pima counties. Applicants are screened by a special panel which then forwards as few as three names to the governor who must choose from that list. Shortly after taking office, Brewer told Arizona Public Radio she was not a fan and would prefer to choose whoever she wants, unrestricted by the choices of the screening commission.
"I will trust their judgment," Brewer said. "Certainly it gives me the opportunity to have a lot of these people prescreened. But, of course, it limits my choices also."
The measure put on the ballot by the Legislature as Proposition 115 does not go as far as Brewer wants. It keeps the screening panel in place. But members are required to send her a minimum of eight names from which to choose. Press aide Matthew Benson said Tuesday his boss can live with it.
"In a perfect world, the governor might prefer to have the authority to reach out and tap whomever she prefers for a judicial appointment," Benson said. "But short of that, this measure would make some significant reforms that maintain the existing merit selection process while increasing the choices that the governor has to pick from."
But the plan has its detractors. One Mary Schroeder, a former judge on the state appellate court who now serves on the 9th Circuit Court of Appeals. She said that requiring the panel to forward the name of at least eight choices will pretty much result in anyone who meets the minimum legal qualifications getting nominated.
"This essentially, it does away with the concept of merit selection which is that you take the most qualified," said Schroeder.
Attorney Mark Harrison said the change is even more sweeping. It scraps a provision where the five lawyers on the 15-member screening panel are named by the state Bar of Arizona. Instead, the governor will get to choose four of them -- along with the 10 non-attorneys she already names. Harrison said that pretty much ensures that the governor will get the nominees she wants -- as opposed to the best the legal community has to offer.
"This system has been characterized as the best model system in the United States," Harrison said. "And the only justifiable, the only plausible reason for the Legislature to want to change it is to give somebody more political power."
But Cathi Herrod of the Center for Arizona Policy said there's nothing wrong with that. She said there already is politics in the system. Herrod said the only difference is that it is the state Bar that wields the political power and ensures that those names on the list from which the governor must choose are more likely to be activist judges.
"The intent is to hopefully open up the merit selection process where there's more accountability in the sense that the governor has more flexibility in who she appoints to the commission, has more names to choose from in who he or she selects as judges," Herrod said.
The measure has been endorsed by the Arizona Judges Association. But Pete Dunn, the organization's lobbyist, suggested there was a bit of extortion involved. Lawmakers made it clear if the judges did not go along, they would adopt a more radical plan: Requiring not just Senate confirmation of new judges, like occurs at the federal level, but unprecedented reconfirmation when their terms are up, giving lawmakers a chance to review and criticize the decisions they made on the bench.
That would have destroyed merit selection in Arizona," said Dunn. "We made a compromise to avoid something much worse. And it's really as simple as that."