PHOENIX — Bypassing six appellate court judges and even members of his own Republican Party, Gov. Doug Ducey on Wednesday chose a lawyer known for his views and legal battles on limited government to serve on the Arizona Supreme Court.
In selecting Clint Bolick of the Goldwater Institute, Ducey said in a prepared statement that he is “nationally renowned and respected as a constitutional law scholar and as a champion of liberty.” And the governor cited his “unwavering regard for the rule of law.”
What Ducey did not mention in his announcement is Bolick’s long history of filing suit — and sometimes winning — against government agencies at all levels.
But the governor, speaking later to reporters, said he does not see that as a negative.
“He has pushed for decades in support of the United States Constitution and the Arizona Constitution,” Ducey said.
Bolick said that being put on the bench does not mean his activist days are behind him.
“I think any judge is going to be an advocate for his or her interpretation of the law,” he said. “But you’re moving from a position of advocating for your client to advocating for the Constitution and the laws.”
Bolick, sworn in just hours after the governor’s announcement, said being self-labeled an “activist” does not mean to him what it does to some others.
“I am what is referred to as a texturalist,” he said, taking the words of the Constitution “literally.”
“When judges stray from the text of the Constitution and supplant their own ideas … they’re amending the Constitution,” Bolick continued. “That, to me, is beyond the scope of proper judicial action.”
Ducey’s first appointment to the court could have an effect on the entire five-member bench, a fact that Bolick acknowledged.
“Among the justices on the Arizona Supreme Court, I probably have devoted more attention to arguing under the state constitution rather than the federal Constitution, and looking at the distinct rights and opportunities that are protected by the Arizona Constitution,” he said. “So, in that sense, it’s probably a different direction.”
But Bolick said he’s not concerned that, given his background, some people may be keeping tabs on his rulings.
“I’m used to a life of scrutiny,” he said.
“I think that judges should write opinions that people are going to want to read, going to want to argue about and, hopefully, find inspiring,” Bolick said. “And if I can do that I’ll be very proud.”
Bolick, a 1983 law school graduate of the University of California at Davis, has spent much of his legal career with organizations known for their battles with government over regulation.
That included a stint at the Mountain States Legal Foundation which advocates for limited government and free enterprise, the Institute for Justice which describes itself as a “libertarian public interest law firm” which sues over issues of school choice and property rights, and the Alliance for School Choice which has been at the forefront of using tax dollars for private and parochial school education.
But it has been at the Goldwater Institute, where Bolick has worked since 2007, that he has been the most active in his litigation, some of it against the state.
Bolick replaces Justice Rebecca White Berch, who is retiring.
Ducey chose Bolick from seven names sent to him by the Commission on Appellate Court Appointments. By law, it screens applicants for vacancies and must give the governor at least three names.
No more than two-thirds can be from any one political party. And the governor is required to choose from that list.
By naming Bolick, Ducey becomes only the second governor to go outside his own party since the current selection process for justices was approved by voters in 1974.
In his application, Bolick said he was a Republican until 2003, choosing at that time to become a political independent.
Republican Jane Hull was the only other governor to ignore party labels, naming Democrat Ruth McGregor to the high court in 1998.
Bolick also was the only one on the list sent to Ducey who was not already on the state Court of Appeals. In fact, Bolick has no judicial experience at all.
The governor, however, said that did not bother him, saying the same is true of some justices on the U.S. Supreme Court.
