On the validity and vitality of Arizona's judicial merit selection system: past, present, and future.

• Author: Harrison, Mark I.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to "traditional elections." (1) Part I of this Article sketches the history of Arizona's merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, largely through extensive interviews of many participants in Arizona's merit selection system, Part III describes the current status of merit selection in Arizona and offers some fresh perspectives on the value of merit selection, with suggestions to assure its preservation in Arizona and its implementation elsewhere. The Article concludes that merit selection, while not a perfect system, is operating commendably and has significant advantages over a system of traditional, partisan or non-partisan elections.

1. BRIEF HISTORY OF JUDICIAL ELECTION AND SELECTION IN ARIZONA

   1. Judicial Appointments and Elections Before Merit Selection

      Before the implementation of the merit selection system, (2) voters elected judges for limited terms. Vacancies in office prior to election--whether by death, retirement, or the creation of new judgeships--were temporarily filled until the next general election by gubernatorial appointment. (3) In practice, however, vacancies were filled far more often by these appointments than by popular election. In 1973, sixty-two percent of the sitting Superior Court (4) judges were first appointed--twelve of the previous thirteen judges appointed in Maricopa County were appointed by the governor. (5) Gubernatorial appointments were not subject to senate confirmation or any other checks and balances. (6) Nevertheless, an overwhelming majority of all judges were gubernatorial appointees who remained on the bench. From 1958 to 1972, over one-half of the candidates had no challenger on the ballot, and two-thirds of those who did won their contest. (7) Of the six defeated judges during that same period, three gained reappointment and a fourth was subsequently reelected to an appellate court. (8)

      Superior Court judges were elected for terms of four years. Appellate court judges (9) were elected for terms of six years. (10) Although judicial elections were statutorily declared "non-partisan" because political party affiliation was not indicated on the ballot, candidates' names usually reached the ballot through party primaries. (11) While ethical restraints generally prevented judicial candidates from campaigning with respect to specific issues, many nonetheless ran on platforms supporting longer sentences and harsher treatment of criminal offenders; this despite the fact that most or all of their post-election judicial service would be devoted to non-criminal matters. (12)

      The reality of judicial politics forced most observers to acknowledge that typical voters were unaware of the candidates, the issues, or even the existence of contested judicial races. (13) Campaigning proved cost-prohibitive for judges who made meager salaries. In metropolitan areas, challenged incumbent judges were assigned newsworthy cases in order to increase their exposure in the news media. (14) Incumbent judges had additional practical advantages over challengers: incumbents were identified in campaign advertising as "Judge," and voters often had a tendency to vote to maintain the status quo. (15) While political parties were permitted to support various judges, the Republican party reportedly provided more help to judicial candidates than the Democratic party provided. (16) From 1958 to 1972, the incumbent was defeated in only 10 out of 215 judicial elections. (17) In other words, over ninety-five percent of the time, the election did not change the composition of the bench. This may be in large part due to reported voter indifference. In the 1972 Arizona elections, although judicial races received more publicity than usual, (18) only eighty percent of participating voters actually cast a ballot in the contested state supreme court races. (19) By contrast, ninety-six percent voted for President, ninety percent voted for State Tax Commissioner, and eighty-seven percent voted for State Mining Inspector. (20)

      Public opinion polls also reflected voter indifference to judicial elections. In 1972, one such poll showed sixty-five percent of voters undecided about the state supreme court races, while only thirteen percent were undecided about the presidential race and twelve to twenty-five percent were undecided about the various elections for United States Representatives. (21)

      Prior to the implementation of the merit selection system, two governors, Sam Goddard and Jack Williams, used an informal but institutionalized system for electing judges through a committee of lawyers from the Maricopa County Bar Association that made recommendations for subsequent appointments. (22) Thus, prior to the adoption of the merit selection system, some of the informal and skeletal mechanisms of such a system were being used. The nominees, however, lacked the same ethnic, gender and political diversity as those selected after the voters' adoption of merit selection in 1974. Nominees prior to 1974 tended to be younger and from large law firms. (23) Furthermore, no committee ever seriously recommended a candidate to the governor who was not of that governor's political party. (24)

   2. The Birth and Evolution of the Merit Selection System in Arizona

      As early as 1959, "a merit selection system was proposed in Arizona as part of what ultimately became the 1960 Modern Courts Amendment." (25) The proposal recommended the adoption of the "Missouri Plan" (26) judicial appointment and retention election system. (27) That November, the specific proposal relating to the merit selection of judges was deleted from the Modern Courts Amendment. (28) Voters approved the remainder of the proposed amendment in the 1960 election. (29)

      Momentum for merit selection continued for several years. In 1965, a State Bar survey indicated that almost two-thirds of responding lawyers favored the appointment of judges. That same year, the State Bar Convention hosted a debate over merit selection. In 1967, Governor Jack Williams and Charles C. Bernstein, then Chief Justice of the Supreme Court of Arizona, called a citizens' conference on Arizona courts. (30) The conference resulted in a permanent organization called The Citizens' Association on Arizona Courts, (31) whose primary goal was the establishment of a system for the merit selection of judges. (32) When its first attempts to pass a referendum for a constitutional amendment providing for merit selection legislation proved unsuccessful, the Association went to the people for an initiative measure. In 1974, it gained enough support to be put on the general ballot. (33)

      While state and local bar associations and lawyers generally raised much of the money to finance the initiative campaign, the Association provided the leadership and public face of the campaign. Merit selection carried in the election by a vote of 253,756 to 217,709 and out of ten initiative measures, it was one of four that passed. (34)

      The 1974 constitutional amendment applied to the selection of superior court judges in counties with a population of 150,000 or more (35) and the selection of all appellate judges throughout the state. (36) The amendment provided for the formation of three nominating commissions--one each for Maricopa and Pima County trial judges, and one for all appellate judges. (37) Each commission consisted of five non-lawyer members selected by the Governor and approved by the Senate, and three attorney members selected by the State Bar and also appointed by the Governor with the Senate's approval. No more than three of the non-lawyer members and two of the lawyer members were permitted to be from the same political party. (38) For the appellate nominating commission, no more than two non-lawyer and two lawyer members could be from the same county. (39) All members served staggered four-year terms. The Chief Justice of the Supreme Court of Arizona presides over at least one of the three commissions and, in practice, votes to break a tie. (40)

      The first selections under the new system filled two new vacancies on the Pima County Superior Court. Legal journals and newspaper articles declared the selections a great success. (41) Although both selections were Democrats appointed by a Democratic Governor, the press noted that the fact that both appointees were from the same political party as the Governor "in no way detracts from their qualifications to survive on the bench," citing as evidence the "critical screening process established by a bipartisan committee" each underwent prior to appointment. (42) According to one journalist, "the screening process in Pima County and the selection of [the appointed judges] ... has proved that the new system can work to the advantage of the public." (43)

      The initial selections in the first two years of the merit selection system show the caliber of judges such a system recognizes. The selections included Justice Frank X. Gordon, Jr., to the Supreme Court; Judge Mary M. Schroeder to the Court of Appeals (now Chief Judge of the United States Court of Appeals for the Ninth Circuit), and Judge James Richmond to the Court of Appeals. (44) Other selections included Judges Robert Corcoran, I. Sylvan Brown, James Moeller, Stanley Goodfarb, and Val A. Cordova to the Maricopa County Superior Court, and Judges Harry Gin, Jack T. Arnold, Gilbert Veliz Jr., and James C. Carruth to the Pima County Superior Court. (45) A few years later, as the result of merit selection, Judge Sandra Day O'Connor was appointed to the...