Merit Selection and Retention: Justices Clint Bolick and John Pelander

I attended a political fundraiser recently. Great candidates. Cool company. And, after, martinis at the Inn.

Only one exchange marred the evening: during the Q and A, a woman I don’t know raised the subject of retaining Arizona Supreme Court justices. I’ll get back to the exchange momentarily, but I need to provide some background first.

Arizona law provides for merit selection of the seven members of the Arizona Supreme Court, judges on the Arizona Court of Appeals, and trial court judges in counties with more than 250,000 residents. (Counties with less people can opt in, too.) Merit selection involves committees of lawyers and lay people who, through a process, send a bipartisan list of names to the governor, who chooses from the list. Periodically, justices and judges appear on the ballot for retention. They only lose their job if less than 50% of those voting don’t vote for them. (Merit selection began in 1974; three judges have been removed in the ensuing 44 years.)

Back to the fundraiser. The candidates spoke. After a question or two, the woman brought up Justices Clint Bolick and John Pelander, who are the two justices on the Arizona Supreme Court on this year’s ballot.

Sorry, but I must digress again.

Justice Bolick joined the Court on January 6, 2016. He was a “political” lawyer for more than 30 years, working for libertarian and R causes. That said, he’s very smart, has a delightful demeanor, and I assume he works hard.

Justice Pelander has been on the Court since 2009. Before, he served on the Arizona Court of Appeals for 14 years and, before he became a judge he practiced tort defense law for almost 20 years. (Full disclosure: John and I were law partners for eight years, and worked together for 12.)

Justice Pelander and I share very little in the political sphere. But he, too, offers brilliance, a terrific demeanor, and a great work ethic. And his background as a lawyer did not involve politics and causes.

And … oh, back to the fundraiser. This lady advocated for voting no on Justices Bolick and Pelander. Why? Well, in a late August decision the Court decided backers of a move to bring sunshine to political donations in Arizona lacked sufficient valid signatures. We don’t know who said yea or nay on the issue, as a full opinion won’t likely appear until after November 6.

Hmmm! Literally, hmmm, as I processed “speak up” or “be quiet.” Generally, “be quiet” serves me well. Why? Because “speaking up” often gets me in trouble.

Not this time. I spoke up for my former partner. (Shamefully, a group put him through the mill six years ago. He survived the retention election, but I’m sure a bit of what little hair he still had went away.) He’s a terrific justice and, more importantly, a man who tries mightily to get it right.

(I fret more than a bit now about having been silent about Justice Bolick. I hesitated because he’s got a political agenda. Still, he far exceeds the proper qualifications for a justice on our Court.)

Don’t like the political views espoused in opinions by these two men? Show up and vote Governor Doug Ducey out of office. Elect the people who will select the people you like. VOTE!

Many years ago, I co-tried a case with one of John’s and my partners. Our client was an out-of-state lawyer. I recall my partner telling him this merit selection thing gave us great comfort that, in court, everybody gets a fair shake. Not so much, always, in places like, for example, West Virginia.

(Did mention WV to piss off my WV-native GF / law partner? No: from where do you think I gained the wisdom associated with keeping quiet? I did so because of Caperton v. A.T. Massey Coal Co., No. 08-22, the case in which the U.S. Supreme Court, 5 – 4, said litigants can’t buy judges with election contributions, including members of the Supreme Court in West Virginia.)

Merit selection should always trump personal preferences on any given case. That doesn’t mean “Vote Aye” on every judge, though. Judges here and there have demonstrated a lack of merit which might support removal. With Justices Bolick and Pelander, however, that evidence does not exist!

P.S. Two thing. First, I did not write this piece to disparage the woman. We chatted for a while after she expressed her heartfelt concerns. I’m sure I changed her mind not one bit, but that’s fine. Civil engagement never hurts. Second, if you want the skinny on Superior Court judges in Pima County and you know me, call me. I don’t share opinions—and what I share represents nothing more than my opinions—in writing, or with strangers.