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The arguments for and against judicial retention elections in Arizona

Portrait of man next to portrait of woman
Arizona Supreme Court Justices Clint Bolick and Kathryn Hackett King.

Two Arizona Supreme Court justices are in the crosshairs of progressives this election season after they ruled to reinstate a territorial-era near total abortion ban in the state. 

Clint Bolick and Kathryn H. King are up for judicial retention votes this November — and now, the nonprofit Progress Arizona is mounting an organized campaign against them, hoping to do the unprecedented and unseat the sitting Supreme Court justices. 

At the same time, Republican lawmakers are considering a resolution that would also go to the ballot in the fall asking voters to get rid of judicial retention elections altogether, except in limited circumstances. It’s an idea that Democrats have pushed back against at the state Legislature.

Bob Robb: Why Arizona shouldn't have judicial retention elections

Bob Robb, who was a longtime columnist at the Arizona Republic, says it's all about judicial independence. Robb is now a politics writer on Substack. Before the state Supreme Court’s decision on abortion, The Show talked with him about the idea of getting rid of judicial retention.

BOB ROBB: I think an independent judiciary is a necessary bulwark for the separation of powers and the rule of law, which is a necessary bulwark for a free society. And I have always felt that our system of retention election for judges created a huge vulnerability in maintaining an independent judiciary for there to be a truly independent judiciary.

Judges can't fear political accountability for individual decisions that they make in individual cases. There does need to be the ability to influence indirectly over time judicial philosophy. There are differences in that, and the body of politics should have the ability to influence the judicial philosophy under which they are governed.

But the retention election holds the possibility of seeking to have judges held politically accountable for individual decisions. And that's an attack on the independence of the judiciary.

Have special interests or super-PACs gotten involved in judicial retention elections?

ROBB: They haven't really to date. It's my fear of what might happen in the future. And there's been preliminary efforts made to try to turn retention elections into some kind of political accountability or retaliation for a particular decision. And there's been preliminary efforts on both the left and the right.

But there is that vulnerability. And I think there's the increasing possibility of it, that it would be good to eliminate this particular vulnerability to an independent judiciary.

Which judges do retention elections apply to?

ROBB: We have a bifurcated system for selecting judges at the Superior Court level in the three largest counties, Maricopa, Pima and Pinal. There's a merit selection process. There's a committee that vets candidates, makes recommendations to the governor. The governor appoints one. Those are the Superior Court judges that have to stand for retention.

In the other counties, there's direct election of the judges and they're periodically on the ballot. All appellate court judges, both the Court of Appeals and the state Supreme Court, are also appointed through the merit selection process and then stand for retention two years after being appointed for a term of office of six years after that.

If we don’t have retention elections, how will we hold a judge who has abused their position accountable?

ROBB: Well, if they abuse their, their, their power other than making a decision with which some people disagree, there remains the impeachment process. Also in Arizona, there's a mandatory retirement age for judges of 70. And most judges get appointed a little later in their career. For example, there are three members of the Arizona Supreme Court who will face mandatory retirement between now and 2030.

So for example, if Katie Hobbs got re-elected, she would have the opportunity to appoint three of the seven members of the Arizona Supreme Court. I would favor adding a lengthy term limit to the judge's tenure, of say eight to 12 years, so that you preserve a protection for independent judgment. And make them eligible for reappointment through the same process, but it wouldn't be automatic.

And so whoever was governor at the time, if he or she did not like the judicial philosophy of a particular judge, could go in a different direction. That would provide the indirect influence over time of judicial philosophy, rather than political accountability for an individual decision.

And no one knows who these district court judges are when you vote, whether or not to retain them. So it just doesn't make any sense for any reason for us to continue to leave open this vulnerability of a misuse and a mischaracterization, perhaps, of the decisions that they make, particularly because we handcuff these judges in what they can do politically if they are subject to such a campaign. … Judicial ethics really limits their ability to fight back.

CATHY SIGMON: Why Arizona should keep judicial retention elections, which started by initiative

Since The Show's conversation with Robb, the debate around judicial retention elections has obviously ramped up, after the state Supreme Court reinstated the 1864 near-total ban on abortion last month.

Progress Arizona says it’s raising money and educating voters about Justices Bolick and King — but a Supreme Court justice has never been unseated in Arizona.

Cathy Sigmon isn’t involved in the Progress Arizona campaign, but she has worked in this arena for some time. Her organization, Civic Engagement Beyond Voting, has been creating voter guides for judges on the ballot for the last two election cycles. Sigmon talked to The Show about why she’s against the effort to take judges off the ballot.

CATHY SIGMON: I oppose that very strongly. The merit system of judicial selection was instituted in Arizona in 1974 by a civilian initiative. It was put on the ballot and voted for by the people of Arizona. It was improved and reinforced in the 1990s. So we have had this system of judicial retention, which is truly the gold standard in the nation.

The merit selection process includes a bipartisan commission which recommends three or more justices to the governor to appoint. And then it also has a retention system that, that is a very important part of the whole process to allow the citizens of Arizona to also weigh in after a period of time on the bench.

A few Superior Court judges actually were unseated in a kind of an unprecedented way in the past. And there was a close call with the Supreme Court Justice Bill Montgomery in 2022. Do you think there's a lot of voter education that needs to happen in something like this?

SIGMON: I do. And it's great to use Supreme Court Justice Bill Montgomery as an example because it takes me back to the judicial performance reports on him. If you have looked at those surveys, they include feedback from peer justices, from Superior Court judges, from lawyers and from litigants who have appeared in front of the court.

But the, the small number of responses that are returned as a result of those surveys were very concerning to me. I took a look back at Bill Montgomery's judicial performance report. And the entire report was based on 12 surveys from lawyers and five from peer judges. From the Superior Court, there were zero surveys. So we realized that that was just insufficient information.

And we started researching in the public record because we feel that people do need to be informed of what the judge's behavior in court is, how their judgments come down, what perspective they bring to their decisions. I mean, there are just so many different points of view that need to be taken into account. So when we published our first Gavel Watch in 2020, we were amazed at how grateful people were for the information.

Do you think that judges are too beholden to public opinion, too politicized in this sense, in the current model?

SIGMON: I think that the judiciary is independent. But one of the points I would make is that for the criticism of politicizing the judicial branch politics is just the business of everyday life. It's our schools, our parks, our health care, our public safety, and judges participate in politics every single day by interpreting laws. I think it's a misconception to say they are calling balls and strikes because laws are always subject to interpretation.

And you can definitely see that in the recent Supreme Court dissent by Justice [Ann A. Scott] Timmer. They're looking at the same law but they are coming to very different conclusions. So judges bring a framework of their lived experience. I mean, they are not blank slates. So they're bringing their experiences, their viewpoints, their ideas, their, you know, the framework through which they see the world onto the bench. And there is no way to separate that from just the politics of everyday life.

Progress Arizona has launched an effort to try to unseat two of the justices who are up for retention. If a Supreme Court justice or even two were unseated by the people because of a decision they made, do you think that would affect the judiciary going forward?

SIGMON: That is not the way we look at it because we look at any individual decision in a holistic manner. We look at a history of the judge where they came from, what their legal experience was, what other cases or what other back they may have brought to the bench. We believe that the point of view of judges should be consistent with the majority of the people of Arizona. And there are times when judges are out of step with our view of justice and equality.

So it is perfectly appropriate for the people to weigh in, but they, they should do it in a holistic manner. It's not, I do not think it should be based on one simple decision, although of course, it's something that we take into account.

KJZZ's The Show transcripts are created on deadline. This text may not be in its final form. The authoritative record of KJZZ's programming is the audio record.

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Lauren Gilger, host of KJZZ's The Show, is an award-winning journalist whose work has impacted communities large and small, exposing injustices and giving a voice to the voiceless and marginalized.