PHOENIX β Seventeen judges and attorneys have put in their bid to be the first Arizona Supreme Court justice appointed by Gov. Katie Hobbs.
But if precedent is any indicator, whomever the governor picks to replace Republican Justice Robert Brutinel, who is retiring, will be a Democrat like her. And that effectively would knock four of the applicants out of the running even if any of them are on the final list of nominees eventually submitted to Hobbs by the Commission on Appellate Court Appointments.
Still, at least one of their names will have to be on that final list: The Arizona Constitution forbids the commission from submitting a list to the governor solely with members of only one political party. The commission also must give her at least three names from which to choose, though there is no maximum number of nominees.
Unlike the U.S. Supreme Court, Hobbs cannot simply choose whomever she wants. The Arizona Constitution requires her to make her pick from the list submitted by the commission.
The flip side: Unlike presidential nominees to the U.S. Supreme Court. Hobbsβ pick wonβt have to survive confirmation hearings in the Republican-controlled state Senate.
Anyone not selected by Hobbs this time may have two other chances for a seat on the stateβs high court.
Among the candidates on the Nov. 5 ballot are current Supreme Court justices Clint Bolick and Kathryn King, both appointees of former Republican Gov. Doug Ducey.
Under the constitutional system of gubernatorial picks, they need voter approval to get a new six-year term. And both have been targeted for defeat by various groups, including those unhappy that the pair were among the four justices who earlier this year concluded the state could enforce an 1864 law which made abortion illegal in Arizona except to save the life of the mother.
There is, however, another complicating factor.
Whatβs also on the ballot is Proposition 137.
Put there by Republican lawmakers, it would change the current system of judicial elections to say that only those judges who had issues, like a personal bankruptcy, felony conviction or being found by the Commission on Judicial Performance Review, would have to face voters on a regular basis. The rest would be allowed to continue to serve without fear of losing an election until the mandatory retirement age of 70.
But lawmakers also crafted that measure to be retroactive to before Tuesdayβs election: If approved, it would negate any vote to remove Bolick, King β or any other judge on the ballot. And for that reason, some of the same foes of retaining the pair on the bench also are urging Arizonans to reject the measure.
There is nothing that requires Hobbs to select a Democrat.
But since the current system of gubernatorial appointments was established by voters in 1974, there have been only two exceptions. And there were reasons behind both.
The first was the choice of Democrat Ruth McGregor by Republican Gov. Jane Hull in 1998.
McGregor, however, came with a pedigree of sorts that allowed Hull, herself a moderate Republican, to make that pick. She had clerked for β and was endorsed by β U.S. Supreme Court Justice Sandra Day OβConnor, a Republican who before becoming the first woman appointed to the nationβs high court was the first female Senate majority leader in Arizona and then a judge on the state Court of Appeals.
The other was actually less of an exception to the rule: the choice of Bolick to the Supreme Court in 2016 by Republican Gov. Doug Ducey.
Strictly speaking, Bolick was registered as a political independent.
But he came directly from the Goldwater Institute and had a long history of filing suit β and sometimes winning β against government agencies at all levels, putting the self-described βactivistβ in lock-step with many of the governorβs views.
The commission will meet Nov. 22 to review the applications and hear comments, which can be emailed to jnc@courts.az.gov as well.
