Attorneys' group opposes ousting Arizona justices based solely on abortion vote

PHOENIX — A group of veteran attorneys has organized to defend the process of how most judges in Arizona are selected and stand for reelection.

And they may raise some money to try to keep Justices Clint Bolick and Kathryn King on the Arizona Supreme Court.

That’s to counter-act an election campaign against the two justices. A political action group is asking voters to deny them new six-year terms in November over their April votes allowing an 1864 abortion law to be enforced in Arizona.

Timothy Berg, steering committee co-chair of the newly formed attorneys’ group, Arizonans for an Independent Judiciary, said members are concerned about an increase in efforts to oust sitting judges simply because voters did not like one or more of their decisions. He said that’s precisely the wrong way to determine whether someone is fit to sit on the bench.

Berg does not dispute that, despite the merit selection system approved by voters in 1974, politics still play a role in who gets selected, particularly for the Arizona Supreme Court, whose justices are picked by governors.

“It’s there,’’ agreed Paul Eckstein, the other co-chair of the organization. “It’s politics at a whole different level. There’s no doubt about it.’’

A governor, when appointing a Supreme Court justice, has to choose from a list provided by the Commission on Appellate Court Appointments, but that system can be gamed by the governor to get the choice he or she wants.

But Eckstein said that doesn’t justify some efforts to oust a sitting judge.

“What our committee is concerned about is a campaign that is organized to take out good judges, good justices on a particular issue that they’re involved in,’’ he said. That means a single unpopular lone opinion being the “one focus’’ of the effort to oust them — and not everything else that person has done on the bench.

This year, it’s Progress Arizona that’s targeting King and Bolick for voting to reinstate the 1864 law that outlaws all abortions except to save the life of the mother.

They weren’t the only justices who ruled that the law supersedes a 2022 statute allowing abortion until 15 weeks. So did Justice John Lopez, who wrote the opinion, and Justice James Beene, leading to the 4-2 ruling on April 9.

But King and Bolick are the only members of the high court who are before voters this year in their bids to get new six-year terms. Voters decide every six years whether to retain justices; the terms are staggered, so the other justices aren’t on the ballot this year.

Berg said the attorneys’ group’s effort to protect sitting judges predates the Supreme Court ruling on abortion. Voters refused in 2022 to return three Superior Court judges to the bench. He said that was based not on whether they were qualified but because some voters didn’t agree with some of their rulings.

“Our view is, of course, that merit selection works because you look at his qualifications, you have a Judicial Performance Review process,’’ Berg said. “Therefore, you want to be looking at a judge’s qualifications rather than how they ruled in any individual case.’’

“Would destabilize” system

Until 1974, judges were elected in Arizona, just like other politicians.

The system approved that year by voters has special panels screen applicants for the Supreme Court, the Court of Appeals and for any trial court in a county of more than 250,000 people. The governor then has to choose from the panels’ lists.

Judges have to stand for reelection on a retain-reject basis, every six years for the Supreme Court and four years for others. If a judge is rejected, the process to fill the vacancy starts over.

That’s what would happen in November if King and Bolick are turned out of office.

Democratic Gov. Katie Hobbs, who was highly critical of that abortion ruling, would then get to make two picks of her own.

Eckstein has long been active in Democratic politics, but said ousting would be a mistake.

“It would destabilize the merit selection,’’ he said.

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Eckstein said it already can be difficult to convince attorneys, who may have lucrative private practices, to give that up to become judges, even for the $205,000 salary a Supreme Court justice makes.

“So you have to work at attracting good people,’’ he said. If you add to that the chance that an unpopular decision could result in ouster — or that some people would want to rebalance the court politically — that could deter some otherwise qualified attorneys from even applying, he said.

Anyway, Berg said, Hobbs still may get her chance to put her stamp on the court, as the Arizona Constitution requires judges to retire at age 70; there is no such thing as a lifetime appointment as there is at the federal level.

A record of political moves

All that, however, has to be seen against the backdrop of the politics already in the system.

In 2016, for example, Republican Gov. Doug Ducey got the Republican-controlled Legislature to expand the Supreme Court from five justices to seven. That gave Ducey, who by that time had named just one person to the bench, two more immediate choices.

That expansion enabled Ducey to add Lopez — the author of the abortion decision — as well as Andrew Gould. Gould left to pursue an unsuccessful bid for attorney general in 2021, opening the door for Ducey to name King as his replacement.

Other political games have been played.

In 2019 Maricopa County Attorney William Montgomery sought a seat on the high court to replace retiring Justice William Pelander. But the Commission on Appellate Court Appointments voted 7-5 against sending his name to the governor, leaving Ducey to name Beene.

Montgomery drew opposition for opposing adoptions by gay couples and amid claims he used his position to try to block implementation of the 2010 voter-approved Arizona Medical Marijuana Act.

Later that year, however, Ducey replaced several commission members, including three who voted against Montgomery. That created an all-Republican commission.

The revised panel decided to send seven names to the governor — the law requires just three. They included Montgomery, whom Ducey chose.

Montgomery was not a factor in the abortion case, recusing himself. While he did not provide a reason, it came after disclosure that, as county attorney, he stated that Planned Parenthood is “responsible for the greatest general genocide known to man.’’

Berg said the abortion ruling — and how Bolick and King voted — should be seen as an outlier.

“Most courts, most of the issues they see on a day-to-day basis, aren’t political issues,’’ he said.

Instead, Berg said, they end up being things like contract disputes between businesses. And at the trial level, he said, what comes up are criminal cases, divorces, juvenile matters and civil disputes.

“Most of what you do is sort of the day-to-day business of resolving disputes between people and between companies,’’ he said.

One reason the lawyers formed the committee is that the rules of conduct for judges prohibit them from soliciting funds to convince voters to let them have another term. That means the only option for anyone to run a campaign on their behalf is if some group, acting as a “surrogate,’’ raises the necessary money.

Eckstein said any involvement in a campaign to keep King and Bolick on the bench would not be his first.

He headed up a committee formed to quash a similar effort in 2012 to oust Pelander. That came after Pelander voted with other Supreme Court justices to allow voters to decide whether to approve an “open primary’’ system where the top two vote-getters would advance to the general election, regardless of party.

The justices did not rule on the merits of the plan but instead concluded only that a trial judge did not err in how it handled the case, a ruling that angered some Republicans. As it turned out, though, voters defeated the initiative.