The Arizona Supreme Court is considering whether voters should be allowed to decide a proposal that would impact whether some judges would continue to face voters. A decision is expected soon.
Two justices, Clint Bolick and Kathryn King, have recused themselves from the case, since one of the provisions of the ballot measure would retroactively return them to the bench, even if voters decide not to retain them in November. But, as Howard Fischer of Capitol Media Services reports, those are the only two justices who decided not to take part.
He joined The Show to talk more about this.
Full conversation
MARK BRODIE: You wrote about something Chief Justice Ann Scott Timber told you, which is that there's really no hard and fast rule about when a justice needs to stand out from a case.
HOWARD FISCHER: Exactly. And this is the same thing obviously we've seen at the U.S. Supreme Court over things like whether Justice Thomas should step down in cases where he knows somebody or maybe he's even taken money from someone. This is all left to the individual justices. And there is no way for the other justices whether here or in Washington to say, you know, you really ought to step down or we're gonna make you step aside, this is left to the individual justices and their own decisions.
So, for example, in this case, where you're gonna be deciding a proposition that has to do with whether judges get de facto lifetime appointments. Justices Clint BolIck and Kathryn King did recuse themselves because they're the ones who would most immediately be affected. That is with the quirk in the way the proposition is worded.
It not only says that you don't have to stand or retain, reject using the current merit system if in fact, you haven't run into a problem like having a felony. But it also says that if voters passed this proposition, it won't matter if the voters were to turn Clint BolIck and Kathryn King out of office because the measure is set up to be retroactive.
So they're the ones who are most affected and they made the decision without explanation to recuse themselves. Now, is everyone else on the court going to be affected at some point? Yes. In fact, if voters pass this, the justices who would normally get six year terms will not have to face voters again. But as Justice Timmer said, this is something that's a lot of ifs involved and it, it's really not immediate, it's sort of attenuated and speaking obviously, only for herself. She said she didn't see any sort of conflict that required her to recuse herself.
Now, the other justices chose not to, to speak with me about it. And certainly that is their right and, you know, can't force that. But what makes it interesting of course is if they had all recused themselves, you would have been in a situation. Well, who do you find to judge this? You'd have to find some justices perhaps who are already retired, who would not be affected by this? And that gets into a whole another situation where you have an acting Supreme Court if you will.
BRODIE: Well, so what did Justice Timmer say about how she was thinking about this particular case? Like why was it maybe so speculative to her, whether or not she would be impacted by it?
FISCHER: I think the issue comes down to a couple of things. Number one, she is not up for retain reject until 2028 and her thought was she may not even seek another term, another six year term. So you have that. But even if she were, I think the idea is, it's not immediate. Now again, this is all in the, the, the, the eyes of the beholder, you know, every job has to decide where they can set themselves and their views apart.
One of the points she made was, look that she's already vested her retirement if somehow she were to either keep her job or lose her job. None of that matters. This compares, for example, to several years ago where you had a case before the Arizona Supreme Court about changes to the judge's pension system.
And she and the other justices all recuse themselves for the simple reason that we're not just talking about some speculative thing that may happen in the future, depending on who would win. The justices could stand to get a lot of money immediately and then not have to pay as much money into the pension plan in the future. And I think from her perspective is that clearly was the kind of thing.
Well, we'd all like to believe we can just judge things on the academic basis when there's real money involved. She said it was better to step away. And again, there's no requirement, there's nothing in the law, nothing in the Arizona Constitution that says when this has to happen.
BRODIE: So, Howie, you've been covering the state Supreme Court and legal cases for many years. I'm curious what you hear from judges and justices about the optics of it looking like there could be a conflict or reason to recuse versus the actual reason. You know, there being an actual reason for a judge or justice to recuse themselves in a case.
FISCHER: Well, I think each one again decides for himself or herself. For example, we had this come up with Bill Montgomery in an abortion case where originally he declined to recuse himself despite the fact, he had said specific things about Planned Parenthood, which was a party to the case and then came back and said, well, yeah, based on some new information which he never disclosed, he said, I think that it just does not seem to be right.
I think each of them relies on their own internal compass. And when we all do that, I mean, look as a reporter, I have feelings on a lot of things that I cover. I try to stay out of the things that will affect me financially.
But let's say my stock portfolio, let's assume I've got 200 shares of Kroger markets and there's a whole merger thing between Kroger and Albertsons. Can I write fairly about that based on the fact that I have 200 shares of Kroger, I'd like to believe I can because I'd say that any decision that's made, whether it is or is not a merger and clearly, I don't have the power of a justice to decide whether it will be, will be so minimally affected, attenuated, I think is a term that Justice Timmer used, that that there could be no argument that somehow my reporting is being affected.
And I think the justices each look at it that way, the question of whether their decisions would be affected based on something that may happen in the future in which m might not happen. And again, the point is that the, what the justices are deciding not whether the proposition is a good or bad idea, but simply question, should it, should it not go to the voters?
