Judicial Selection: It’s Merit-Based in Arizona

October 2, 2014

Judges and elections. It’s that time in the cycle—it’s a 24-month cycle—when ballots appear and people call/email/instant message me about the judges. “Who do I vote for” is the common question.

Arizona has a modified merit selection plan. Merit selection applies to our Supreme Court, Court of Appeals (Divisions 1 and 2), and to Superior Court (trial court) judges in counties with more than 250,000 people. (Right now, there are three:  Maricopa; Pima; and Pinal.)

In non-merit selection counties, trial judges get elected. They raise money, they holler about being tougher on crime than their opponent, and absent a scandal or one candidate being a real jerk, they’re popularity contests.

In merit selection counties and for the appellate courts, commissions exist. Each commission includes 10 lay members and five attorneys. Selecting the “selectors” varies slightly, as between the Commission on Appellate Court Appointments and the trial court commissions, but all appointments are made by the governor and confirmed by the Senate. (Unfortunately, the confirmation process has politicized matters—you can imagine why I might not bother applying to serve on one of the commissions—but I don’t think it has affected who our judges are.)

When a judicial opening arises, because of a retirement, a resignation, a death, or when a new judicial division is authorized and funded, the applicable commission seeks applicants for the opening. A review/interview/selection process ensues, after which at least three names are sent to the governor. She chooses the new judge.

Judges are on the ballot every four years for retention. A judge must get 50% yes votes to stay in office. (In 40 years I think three Arizona judges have not the 50% mark.)

Prior to being on the retention ballot, the judges up for retention get evaluated by parties, jurors, witnesses, attorneys, and court staff. Questionnaires get sent out, and are provided in the court rooms of those judges. Scores get tabulated. Most judges have almost perfect scores. Occasionally, a judge falls short, sometimes pretty significantly.

The Arizona Commission on Judicial Performance Review evaluates the questionnaire results. If a judge’s numbers are down, the Commission may investigate the situation. Ultimately, the Commission votes. There are 29 commissioners. Most judges get 29 votes in favor of retention. A negative vote or two occurs every once in a while. In 2014, the Commission recommended against retaining Judge Catherine Woods in Pima County, 22-7. That is a very unusual vote.

With all of that having been said, I’m proud of the fact that justice does not get sold to the highest bidder in Arizona. It happens in other states, truly. Here’s an overview of Caperton v. A.T. Massey, No. 08-22, a U.S. Supreme Court decision associated with a case in which a reasonable person could readily reach the conclusion that A.T. Massey CEO Don Blankenship bought the West Virginia Supreme Court, to get a favorable outcome in his suit. By a five-four vote, the Court held that the West Virginia justice who received the benefit of the money spent by Mr. Blankenship on his behalf had a duty to recuse. (The West Virginia case is especially egregious, but this sort of thing happens in many jurisdictions where elections are involved.)  

Finally, about those calls. I’m happy to share my thoughts about judges. Provisos:  No writings; no quoting me, please; and I vote yes for almost everyone, for I think we have a great group of judges in our community and our state.



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