Prop 115 would give governor more say in picking judges

PHOENIX – Saying the system needs to be fixed, state lawmakers – virtually all of them Republicans – are asking voters to revamp how judges are chosen for the state Supreme Court and Court of Appeals.

Proposition 115 would give the governor more power to choose who she wants to sit on those courts, as well as the superior courts of Pima and Maricopa counties. But it would keep in place what's been dubbed the merit system, adopted by voters in 1974, albeit with a key change.

Under the current system, vacancies for those courts are filled not by election, as occurs in the rural counties, but instead through a screening process.

In essence, those who want to be appointed apply to a special screening commission. That commission reviews the applications, conduct interviews and then send a list of at least three names to the governor.

More to the point, the governor has to choose from that list.

Since that time, critics have called to either return to direct election or adopt a federal system, where the governor gets to name who she wants subject only to Senate confirmation.

The compromise worked out by some of the interests, on the ballot as Proposition 115, preserves the merit screening process. But the governor would have to be given at least eight names from which to choose.

Rep. Eddie Farnsworth, R-Gilbert, said that restores what he said was the original constitutional intent to have the governor, as the state's chief elected official, make the final choice, instead of having to pick from a sharply limited list.

“If the people don't like what the governor's doing, they don't re-elect the governor,'' he said.

He said the move preserves the commission to determine if applicants are qualified to sit on the bench.

“And if they're not, they don't have to send them up,'' Farnsworth continued. “But if they're qualified, why does the commission get to narrow it down to decide who's going to be on the bench?”

Former Arizona Supreme Court Chief Justice Charles Jones said he knows why.

“When you limit the number of nominees to a minimum of three, you're going to get three people, regardless of what the governor does, that are going to be pretty much highly qualified people,” he said. “When you begin to expand that list to eight, then you water down the qualification.''

Jones said he has no illusions that any system is going to remove politics from the process.

For example, in the entire history of merit selection, only one governor chose a supreme court justice not of her own party. And that was just once.

Jones, a Republican, got named by Republican governor Fife Symington.

“Limiting it to a minimum of three, you assure the state and the citizens that politics are going to play a secondary role, and that quality and merit are going to play a primary role,” he said.

But Farnsworth said tying the governor's hands is not the role of the commission. He said the commission is simply to screen out those who are not qualified.

He pointed out there's a provision in Proposition 115 to let the commission send up fewer than eight names if they vote, by a two-thirds margin, that there are not that many who meet the standards. Farnsworth said that prevents the governor from just appointing an unqualified political supporter.

“But if they are qualified, then it's not the commission's job to limit the number,” he said, saying that's why the 1974 measure, while requiring nomination of at least three, has no cap.

“It's simply a minimum standard,” Farnsworth said. “But what we've seen is, that's all they've sent up is three, even in circumstances where I believe there were additional qualified candidates.”

The proposal is opposed not only by Jones but four other former chief justices, all of whom are products of the current merit selection process. And several former presidents of the State Bar of Arizona also have lined up against the measure.

But it does have the support of both the current board of the State Bar as well as the Arizona Judges Association.

There may, however, be less there than meets the eye.

Legislative proponents of the measure made it clear that if the judges did not go along, they would push for a far more radical change: Requiring not just Senate confirmation, as 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.

Pete Dunn, the judge's lobbyist, said that would have destroyed merit selection in the state. He said the judges went along “to avoid something much worse.”

But the judges did get something else they wanted: If approved, it boosts the mandatory retirement age from 70 to 75.

Gov. Jan Brewer has sided with supporters, saying she wants a longer list from which to pick. That is not surprising: In each of the three of the vacancies Brewer has had to fill she had to choose from just three. And only two of them were Republicans like her because the current rules require there be a mix of political affiliations among nominations. That requirement, too, would be scrapped under Proposition 115.