Two Arizona Supreme Court justices who ruled to uphold an 1864 abortion ban earlier this year are facing a campaign to oust them via the ballot this November. Justices Clint Bolick and Kathryn H. King are up for retention votes this fall. And now a conservative political activist has launched a campaign to try to convince voters not to oust them.
Randy Kendrick, wife of Arizona Diamondbacks owner Ken Kendrick, said she wants to stop “liberal groups from taking aim at the state Supreme Court.”
But Arizona Republic columnist EJ Montini asks if it’s liberal groups that she’s protecting us from — or just women who want to control their own health care.
Full conversation
LAUREN GILGER: What do you make of this effort by Randy Kendrick to protect these justices on the ballot this fall?
EJ MONTINI: Well, I think it could be twofold or threefold. I do think that there is the notion of protecting the judges particularly. But I also think there's a fear that should these judges be removed, that Gov. (Katie) Hobbs will have an opportunity to appoint new justices. There’s that fear. And there’s also just a fear — on I think the part of some — that you’re giving up a significant portion of the power if the Supreme Court were to switch.
So I think there’s I think that’s multileveled in some ways. Ad also, I think the people who have money, like Randy Kendrick, like to be part of the game. They like to they like to push their agenda, and they have the money to do it.
GILGER: So I want to ask you about another layer of this. There are many. But this is all sort of complicated again by another effort by GOP lawmakers that they put on the ballot this fall, too, which would give judges essentially lifetime terms on the state Supreme Court. And it would be retroactive.
So even if voters voted these two justices out on the ballot in November — they did not pass their retention votes — and if voters passed this referendum, they’d get to stay?
MONTINI: Yes, that is the sleaziest. Well, there are two sleazy aspects of that particular referendum that the Republican-controlled Legislature put on the ballot. The first is that you’re literally changing the rules — not because you think it’s a good idea to change the rules, but just to protect a couple of people who you think are on your side, which is not the way you’re supposed to change rules.
And then the second thing is the retroactive part. These two justices came onto the court under these provisions, and they knew it when they took the job. And so that’s the provisions that should be judging them. It makes the most sense to do that.
And you throw that thing on the ballot because you just want to confuse people, hopefully. That’s their plan, I think. Because I believe — if you look at the national polls these days for, say, what President Biden was proposing for the Supreme Court — USA Today took a poll that said that like 75% of Americans thought there should be a code of conduct for the Supreme Court.
Well, the Arizona Supreme Court has a code of conduct. Roughly the same amount thought that the justices should only be limited to, like, 18-year terms. Well, Arizona has this provision that says we can vote you in, we can vote you out. There’s an element that we are, in our own way, sort of ahead of the curve. And we have a Legislature that’s trying to put us back.
GILGER: So I’ve done some interviews about this particular issue on The Show before, and the other side of this seems to be that there’s an argument that we don’t want politics interfering with the way that justices rule, right? Like, they want to be able to do this without the pressure of outside groups, and that’s why they should get these kind of lifetime appointments.
MONTINI: Yes, that’s the ideal. The reality is that, as we all know, that’s kind of bull. The fact is that there’s a difference between having opinions, which is fine. Everybody has opinions, and I have no problem with justices that have opinions, because they’re people. They’re regular people, they have it.
In the judicial code of conduct in Arizona, it says that if you’re essentially if your opinions are an obvious problem, then you need to recuse yourself. And if you’re somebody like Bill Montgomery, who has been a vehement anti-abortion advocate — participating in protests and talking, making speeches and being really inflammatory with your language — well, come on. You know that that’s further than you’re supposed to go if you’re going to try to maintain some element of fairness on a judicial level.
So I think that it’s a matter of degree. It’s a sliding scale. It’s a very hard thing to quantify. And that’s what keeps justices, judges, whatever from very rarely being sanctioned for their conduct, because it varies with the people who are looking at them. And it varies at the time that they’re making those decisions.
GILGER: So you’re bringing up another kind of plot twist to all of this, another controversy over Justice Bill Montgomery, who you mentioned, who says he will not recuse himself from a case over the wording of the Arizona for Abortion Access initiative that will be on the November ballot as well. The Legislature wrote the wording to use the phrase “unborn human being” as opposed to “fetus.”
A lower court said, that’s not fair. Now it’s going to the state Supreme Court on appeal. Bill Montgomery, as you said, has been pretty outspoken in the past about his feelings about Planned Parenthood and abortion rights. Do you think this brings up bigger concerns about the ability of the people to trust in the court, not just at the U.S. Supreme Court, but at the state level as well?
MONTINI: Yes, I do. I think it really very much does do that very thing, because he knows that that’s inflammatory language. And the law says we’re supposed to guard against inflammatory language. We’re supposed to present the most neutral language you can when you’re presenting those kind of propositions.
I mean, Bill Montgomery is a smart guy, and he knows exactly that it’s a dog whistle kind of language, and he shouldn’t be part of that. And he would totally agree with it, so that’s the other thing. That’s one of the reasons why you should recuse yourself. I mean, I understand the desire not to. That’s a human aspect to this whole part. These are people who, they’re in a position where they can make these decisions, and it must be very tempting.
But ultimately, if you’re really doing your job, you’re removing yourself, because that would be the ultimate form of demonstrating the fact that you can be an unbiased jurist.
GILGER: I had Justice Clint Bolick on The Show, I think last year when there was another debate about Justice Bill Montgomery stepping down from another major abortion decision. He didn’t talk about that case or Justice Montgomery, but he did give a pretty hearty defense of justices recusing themselves in certain situations, like he recuses himself often when any case that comes before the state Supreme Court has to do with the state Legislature because, as we know, his wife is a state legislator.
So I wonder, though, the difference between that kind of conflict of interest and having to step down then versus having a judicial philosophy or versus having, as you said before, a personal opinion.
MONTINI: Yeah, I think that it’s fine. Like I said, the personal opinion part is fine. But when you’re like an active participant in a particular issue, let’s say a gun issue came up in front of the state Supreme Court or something like that. And you’re not just a member of the NRA, but you have lobbied the Legislature or you have participated in events and stuff like that.
It’s all a matter of degree. If you’re a person who just generally believes that the Second Amendment guarantees the right for everybody to carry a firearm, I have no problem with that. That's your opinion. That’s fine. And you could, I’m sure, base your decision on the merits of the case. But if you’ve shown yourself to be like a zealous supporter that has gone into the realm of being an outside advocate for the issue, then I think you have to recuse yourself.
And that would be a big problem with the recent case with Bolick. Again, when the Supreme Court dealt with work release programs for unionized members of municipalities. In that case, Bolick wrote the opinion outlawing essentially these work releases for unions and municipalities, like fire departments and police.
Well, a few years ago, he was the Goldwater lawyer literally arguing to do that in front of a court. He was that much of an advocate. And now he’s sitting on the Supreme Court, and the guys who are arguing in front of him were literally his colleagues from before. I had trouble with that as well. I just think that's where you crossed the line.
