'Field of Dreams' for Voters in Arizona: Merit Retention Elections?Justice O'Connor Helped to Build It

• Author: Dinita L. James
• Pages: 7-8

Published in Litigation, Volume 49, Number 4, Summer 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

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HEADNOTES

THE JUDICIARY

“Field of Dreams” for

Voters in Arizona

Merit Retention

Elections

Justice O’Connor

Helped to Build It

DINITA L. JAMES

The author is an assistant attorney general for

the state of Arizona, Phoenix, and editor in chief

of Litigation.

If you build it, [they] will come.

That alteration of the line from the

1989 film Field of Dreams popped into my

head as I studied the results of the 2022

merit retention election for superior court

judges in Maricopa County, Arizona. The

movie line that emanates from the Iowa

cornfield is “If you build it, he will come.”

The “he” is Shoeless Joe Jackson, the hero

of the father of Kevin Costner’s character,

and Shoeless Joe does indeed join other

spirits to play on the diamond Costner

constructs amid the stalks.

In my version, “they” are Maricopa

County voters, who appear to have used

the resource Arizona created to inform

their vote on whether to retain appointed

judges on the bench.

Retired Supreme Court Justice Sandra

Day O’Connor was an ardent proponent of

merit selection of judges. In a 2008 essay

she coauthored for the 50th anniversary of

the Arizona Law Review, Justice O’Connor

stated, “Judicial selection methods and the

practices surrounding them have a great

impact on the accountability and indepen-

dence of judges, as well as on the pub lic

perceptions of the judiciary.” In 1971, as

a state senator, she was a sponsor of the

first Arizona bill seeking to create a merit

selection system for judges. That bill did

not make it out of committee, leaving in

place the existing system of partisan judi-

cial elections. A similar 1973 bill, also with

O’Connor as a cosponsor, made it out of

the Senate but died in the House. Arizona

finally adopted a merit selection plan for

appellate judges and for trial judges in the

larger counties through a voter-initiated

constitutional amendment in 1974. One of

the first judges appointed to the Arizona

Court of Appeals through the new pro-

cess was O’Connor, who served there until

her confirmation to the Supreme Court

in 1981.

Arizona now holds periodic retention

elections, in which voters get to decide

Headnotes illustration by Sean Kane