Now, I heard a news report last month that Arizona State Seantor Jack Harper is proposing a change of law/policy on how we choose judges in Arizona. Specifically, he is proposing to the Senate that voters be allowed in November to change from our current JNC based "merit selection" system of selecting judges to more of a Federal model. One of the reasons cited for such a change is to wrest power away from the Arizona State Bar, which I think is a good thing. We all know the stereotype about lawyers, but I'm finding it to be often true. It stands to reason the stereotype would be easier to spot in a large organization of lawyers. Watch for a future post titled "Scumbag lawyers" about the Bar in the Judge Hinson blog. But there's more to the Senator's proposed change than that. (See the story for details.)
Such changes would have the greatest effect for judges in Maricopa and Yavapai County. (See my post on the differences between retention and contested elections in these counties. Keyword: "A distinction without a difference.") Still, such a change would affect Yavapai County too.
Now you ask, since this blog is focused on Yavapai County Presiding Superior Court Judge Robert Brutinel, what does this particular post have to do with him?
Answer: Not much. But since I took the time to watch the JNC's nominating process when Judge Brutinel wanted to be a Supreme Court Justice last year, I thought I'd add my comments to the news report. Beside, if my suggestion for retaining judges were law, would Judge Brutinel survive?
By way of overview, when it's time to pick a new judge in Maricopa or Pima County (due to retirement of a former judge for example) the Arizona State Bar gets to choose the initial candidates. Why? Why is it that a private organization should have the ONLY say in who our public judicial officials are? The stereotype-and the concern of Senator Harper-is that the Arizona Bar is a left leaning organization. (Ever heard of Democrats and the "trial lawyer lobby?")
In contrast, when it's time to pick a new judge in Yavapai County, (due, say, to the resignation of a former judge) the Governor appoints their own candidate. Or, when a judge or lawyer already in the system wants to move up, they simply apply for a judicial opening.
The list from the Arizona Bar then goes to the JNC which whittles it down to three, with breakdowns taking into account stated political affiliation. The process within the JNC is somewhat transparent (but not totally). The process within the Arizona Bar is not transparent at all. (Danger, Will Robinson!)
I dunno... from what I saw of the JNC I thought it was fairly even handed. Manned by mostly (or exclusively?) unpaid volunteers, I'm sure political shills try to infiltrate their way onto the Commission. (There were some interesting people studiously taking serious notes in the public gallery.) So I expect that someday the Commission will be thoroughly corrupted. But for now, it seemed even handed to me.
That's not to say there aren't some problems. I've already mentioned a few of Judge Brutinel's friends (or acquaintances?) who refused to recuse themselves to avoid even the appearance of impropriety. (A sore point with me. "Justice should not only be done, but should manifestly and undoubtedly be seen to be done." ) To be fair, there were other friends of other judges who similarly did not recuse. (One was a member of the same local church of the judge, where, IIRC, the judge was in leadership.) In fact, NO ONE I saw recused themselves in the JNC after disclosing their relationship with a candidate.
Another problem I saw was that, aside from proactive citizen input (which was kept confidential... I have mixed thoughts about that. I think names should be redacted, but the comments made public), from what I heard, it seems most of the Commission members, who seemed diligent, simply called other judges to get input about a candidate. [Hopefully they disregarded the obvious lobbying for one's favorite candidate by members of the public at the meetings. Maybe it even turned them off. Indeed, former Chief Justice Ruth McGregor said twice that there was no shortage of positive input on candidates, implying there was too much salaciousness.]
Now, whether you believe the Judiciary is a "Good ol' boys club" or not, think about it. If you belonged to a smallish select group of people where someone could blackball you if you rocked the boat, would you tell a Commission member that a certain candidate stinks? I suspect not. It's like being in a union. (Or the Mafia.) "Rocka th' boat and we breaka your legs." Already we know from the former judge hinson fiasco that no judge or attorney reported judge hinson during his three year spree.
Aside: In fact, I theorize that it wasn't until he retired as Presiding Judge that Judge Ray Weaver reported judge Hinson to the Commission on Judicial Conduct in early 2004. This to be out of the club.
I suspect that the best case is that if a judge thinks a candidate stinks, the judge will simply not say anything good about the candidate, but he won't say anything bad either. (As when your doctor gives you a non-committal "recommendation" about you ask for input about another doctor.)
Would a Senate Committee do any better in the selection process? Probably not, but I agree with the principle that the Legislature should exercise its rightful Check & Balance authority over the Judiciary. As it stands now, and as judges like it (as we'll see in the story below), the Judiciary has little accountability to anyone outside itself.
My suggestion? I would pick the best from both worlds. I don't like the Arizona Bar picking the nominees, so I'm content to let Senators do that. (Or make it so anyone can apply for the job. That would eliminate the monopoly the Bar currently has.) Yes, there will be partisan politics, but that's a truism in a Democratic Republic. "Elections have consequences."
From the Senate's pool, I'm content to let the JNC examine the candidates as an organ of public oversight. Then the Governor gets to make the final selection. So you have the Legislative and the Executive-and the people-involved.
As for the retention of judges, I believe that the current system in Maricopa and Pinal County is on the right track. The people should decide if a judge is a good judge or not. But I would change things to require a "super majority" of voters to retain a judge. That is, a judge should be so outstanding that everyone wants to keep him. Otherwise, "vote the bums out." Power corrupts and absolute power corrupts absolutely. Judges just about have absolute power now and I see no reason to let them prove the adage retaining them by default.
I'd be almost as comfortable with the Senate, as our representatives, voting to retain judges as long as a super majority is required there too.
Okay, as if this post weren't long enough (longer for me... I have to write it), here are my comments [in brackets] in an excised version of the news story.
Retired U.S. Supreme Court Justice Sandra Day O'Connor has for years tried to convince states to adopt Arizona's system of selecting judges, which aims to remove politics from the judiciary. [First, one has to wonder if Mrs. O'Connor would have been nominated to the Supreme Court if she weren't a woman. Is she really a great Justice or was she picked for her gender? (Gender.) Second, do you think the Arizona Bar is apolitical as the deluded Mrs. O'Connor implies? Third, the fact that she's in favor of the Arizona Bar picking candidates ought to tell you something.]Four hours. Time to stop.
But a state Senate committee will consider asking voters to ditch that system and require judges be confirmed by the Senate every four years, a move supporters say would prevent judicial activism but which O'Connor called "a great step backwards."
The merit system applies to state appellate courts and trial courts in Maricopa and Pima counties, where the vast majority of Arizona's judges work.
For each judicial vacancy, nonpartisan commissions review applications and send the three most qualified candidates to the governor, who selects one.
Voters decide whether to retain judges or remove them from office.
Sen. Jack Harper, R-Surprise, proposes that judges instead be nominated by the governor and confirmed by the Senate, similar to the federal system.
Judges would have to be reconfirmed by the Senate every four years.
Social conservatives have backed similar proposals in the past, saying legislative oversight would provide a check and balance on the judiciary and help weed out judges who might overturn policies popular with voters. [Yes.]
The governor fills vacancies on the commissions from a pool of candidates nominated by the Arizona State Bar.
"What we have now is dominated by the State Bar," Harper said. "They are liberal, activist, and out of touch with the general society." [Yes. But even if they aren't, why should the Bar have a monopoly? The Bar is not a representative of the people. Give me an overwhelming reason WHY the State Bar should be the sole arbiter of who gets to be a judge.]
John Phelps, chief executive of the Arizona State Bar, said his organization doesn't have undue influence over the selection of judges. [Oh, come on. It picks / limits the initial pool!]
He said the bar nominates diverse candidates of all political leanings for the selection commissions. [Yeah, right.]
The bar doesn't vet, endorse or oppose potential judges and has no communication with the commissions regarding applicants, he said. [That we know of. But we can't know since the Bar isn't a transparent public organization.]
Arizona Chief Justice Rebecca White Berch said Arizona's judiciary is among the best in the nation and Harper's bill seeks to fix a system that isn't broken. [Like she's going to say "You know, our judiciary in Arizona stinks." She and her colleagues gave former judge hinson a pass when his case of perjury came before them. The jury is instructed to disregard her statement as prejudicial.]
Berch said she worries the proposed reconfirmation requirement would politicize the process and force judges to think about pleasing senators instead of sticking to the law. [As it is, potential judges think about pleasing the Arizona Bar. Think I'd have a chance with the Bar if I were a lawyer?]
"That's not how the rule of law is supposed to operate," Berch said. "There ceases to be a rule of law at that point." [You'll see that Terry Goddard talks about the nebulous "Rule of Law" a lot too. That's code for "Judges are gods. We make the law. We don't need you peons telling us what the law says. And we don't need no steenkin' oversight."]
Now, back to our regular program.
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