Arizona judicial retention keeps judges accountable. Why do Republicans want to do away with it?

Legislation to place a constitutional amendment on the November ballot that would virtually eliminate judicial retention elections in the state’s biggest counties is sailing through the Arizona Legislature. 

Have we learned nothing about judicial accountability from the ethical and financial scandals of the US Supreme Court? Or, more likely, has the Republican-controlled legislature read these news reports and decided that judges should be shielded at all costs from the consequences of their decisions and behavior?

Republican votes propelled Senate Concurrent Resolution 1044 through the Arizona Senate, and the measure is scheduled to be considered March 20 in the House Municipal Oversight & Elections Committee. The legislation would end a process that Sandra Day O’Connor championed during her service in the Arizona Senate in the 1970s and actively promoted throughout her life. 

A major supporter of judicial merit selection, O’Connor recognized that retention elections, where voters weigh in on judges every four or six years (for superior court and the appellate/Supreme Court, respectively) years would put an end to corrosive partisan elections. Then public scrutiny would encourage judges to remain independent and impartial. 

This has worked well for 50 years, and our judiciary is the better for it.

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Enacted by a citizens initiative in 1974, merit selection began in Arizona at about the same time O’Connor was appointed to the Maricopa County Superior Court. Since then, merit selection of judicial appointment nominees by bipartisan Commissions on Judicial Selection has become a cornerstone of integrity in our state, and the Judicial Performance Review process is extremely helpful. The JPR conducts surveys of peer judges, attorneys, and others to evaluate judicial performance based on legal ability, integrity, communication, temperament, administrative performance, and settlement activities. 

The nonpartisan organization which I co-founded, Civic Engagement Beyond Voting, found that, while official performance reviews are a vital part of the merit process, the results are often too meager to allow voters to make informed decisions. 

Take the results for Justice Bill Montgomery, whom Gov. Doug Ducey placed on the Arizona Supreme Court, for example. In 2022, 12 surveys were returned by attorneys, five by peer judges, and zero by Superior Court judges. Clearly, that is not enough for a valid feedback sample. In our 2022 report on the judges, Gavel Watch, we wrote: “Montgomery was formerly turned down by the AZ Commission on Appellate Court Appointments with criticism of his lack of experience, his clear ideological bent, and his office’s culture of misconduct….Montgomery politicized the Maricopa County Attorney’s Office when he managed it from 2010 to 2019, during which time the office was “plagued by scandal and lawsuits” (Slate, 2019).  He fiercely opposes LGBTQ equality, and openly refused to provide adoption support services to same-sex couples.” 

While voters retained Montgomery, public accountability resulted in him getting more than 250,000 fewer votes than other Supreme Court justices on the 2022 ballot, surely a reprimand and a warning by the voters. Montgomery’s JPR report showed two votes of “does not meet judicial standards,” but the recommendation wasn’t more fully explained and overall they recommended retention. 

Montgomery didn’t get dinged on the JPR Report for outright fraud or felony conviction, as the proposed bill language would require, but more likely for values that are grossly out of step with the public. 

Using the rationale that we wretched voters are overburdened by choices, the Republican legislative majority is trying to to bring the hammer down on a critical part of the judicial merit system: public accountability. 

Republicans are furious that voters unseated three Maricopa County Superior Court judges during the 2022 cycle, and have been pushing legislation to dilute and now simply eliminate the voters’ voice. The conservative Goldwater Institute has filed a lawsuit to force regionally appointed appellate judges to nonetheless be retained in a statewide vote, while this ballot referral neatly solves the pesky merit accountability problem altogether. 

Asking voters to oppose their own power is a tricky way to advance anti-democratic goals. We often say, “If you don’t have a seat at the table, you’re probably on the menu.” We strongly oppose this attack on the decades-old right of Arizonans to hold their judicial system accountable, and urge readers to call their AZ House Representatives to protest SCR1044.