By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Progress Arizona is launching a campaign to deny new terms to two of the state Supreme Court justices who voted earlier this month to allow the 1864 law on abortion to once again be enforced in Arizona.

And they’re gearing up to kill a proposal by a Sierra Vista Republican to strip voters of that right.

The organization that supports progressive causes wants to convince voters to exercise a seldom-used right to reject a bid by a judge to be retained in office. If they are successful, that would end the tenure of Clint Bolick and Kathryn King, both appointees of former Republican Gov. Doug Ducey.

Neither would comment on the effort.

It also would clear the way for incumbent Democrat Katie Hobbs to name their replacements.

None of that would affect the high court’s conclusion that the territorial-era law that outlaws abortion except to save the life of the mother trumps a 2022 statute allowing the procedure until the 15th week of pregnancy.

But give that the vote on that was 4-2 — with Bolick and King on the prevailing side — allowing Hobbs to name two replacements if their bids for new terms are rejected by voters could change the balance of the court.

That, however, is just part of the fight.

The organization’s Abigail Jackson pointed out that the state Senate already has approved a proposal by Sen. David Gowan to alter that system that now gives voters a regular chance to oust judges. Instead, a judge or justice’s name would go on the ballot only if there had been some sort of incident, ranging from a felony conviction to personal bankruptcy, mortgage foreclosure, or if the Commission on Judicial Retention concluded their performance on the bench fell below standards.

What’s more significant is that Gowan’s measure, if it were approved by voters in November, would be retroactive. And that means King and Bolick would get to keep their seats — even if voters at the same election decided they should not.

SCR 1044 already was approved by the Senate on a 16-14 party-line vote. It now awaits debate in the full House.

And, being a ballot measure, it would bypass Hobbs.

This would be the first significant change in how judges are selected and retained since voters approved what is known as “merit selection” in 1974.

Prior to that, judges were elected like all politicians. And that remains the case in counties of fewer than 250,000 residents.

Under the new system, when a vacancy occurs, applicants are screened by special panels who make nominations to the governor who then must choose from that list. Voters then get to decide on a regular basis whether to retain or reject a request for a new term.

If rejected, the process starts over again. Only six have been ousted in all that time, none from the Supreme Court.

Members of the Arizona Judges Association want that changed and retained former state Sen. Jonathan Paton to lobby for them.
Paton says most Arizonans are totally unfamiliar with the judges.

And he pointed out in Maricopa County it is not unusual for the names of more than 50 superior court judges to be on the ballot.

What he got Gowan to sponsor would essentially be lifetime appointments — at least until mandatory retirement at age 70 — for any Supreme Court, Court of Appeals or superior court judge in larger counties unless they got into trouble and their names were placed on the ballot.

Gowan did not return calls seeking comment. But Paton said the proposal has nothing to do with the legal fight over abortion, pointing out it was filed in February, two months before the Supreme Court ruling.

But what also is true is that everyone was aware that a decision was pending after the high court heard arguments in December.

And Paton defended the retroactivity clause that would override any decision by voters in November to turn King or Bolick out of office.

“The voters will decide if this is a good policy,” he said. Paton said having the change prospective only — meaning only those judges who would have to stand for retention beginning in 2026 — “doesn’t make any sense.”

Jackson, however, said voters are entitled to have their say on judges — even if opposition is based on a single decision.
“Voters across the board are angry about this ruling,” Jackson said.

“This decision is not in line with voters want,” she continued. “If Arizona voters want to use the power that the constitution gives them to hold them accountable, and their main concern is this ruling, then I think voters are within their rights and power to do so.”

Anyway, she said, it’s not like Progress Arizona is making the court political.

Jackson pointed out there were just five justices on the Supreme Court until 2016. That is when Ducey convinced the Republican-controlled Legislature to expand the court to seven, a move that immediately gave him two appointments on top of the one he already had made.

Ducey argued that the change was justified by the state’s population growth.

But Democrats said that excuse doesn’t wash, pointing out that, even at five justices, that amounted to one for every 1.3 million residents. By contrast, California, with seven on its high court, had one for every 5.5 million residents.

That 2016 law enabled Ducey to add Bolick, a registered Libertarian, and Republican John Lopez IV. It also meant he named five of the seven justices; the two dissenters in the abortion decision, Chief Justice Robert Brutinel and Justice Ann Scott Timmer, were named by Jan Brewer, his predecessor.

Only six justices decided the case after Bill Montgomery, another Ducey appointee, disqualified himself.

The campaign by Progress Arizona puts Bolick and King in a difficult position.

While Progress Arizona can raise funds to defeat them — Jackson said she does not know how much that will take — Paton said the rules governing sitting judges prohibit them from soliciting funds to convince voters to keep them on the bench.

Instead, only someone acting as a “surrogate” for them can raise money for a campaign.

Potentially more significant, the rules bar judges judge from speaking about or defending individual decisions. About the only option is the ability to respond to “false, misleading or unfair allegations’’ made against them during the campaign.
Paton said he did not know who would finance the campaign to convince voters to scrap the current way merit selection works.