Get rid of retention elections for judges

Legislative Republicans seem willing to close a vulnerability to maintaining an independent judiciary. Democrats should join them.

Legislative Republicans seem ready to do something both surprising and useful: largely get rid of retention elections for judges. More precisely, give voters the opportunity to do so.

The measure, Senate Concurrent Resolution 1044, would abolish retention elections for appellate jurists and trial bench judges appointed under the merit system except for limited circumstances. The most relevant would be a negative recommendation by the Commission on Judicial Performance Review. 

An independent judiciary is a necessary bulwark for the rule of law, which is a necessary bulwark for a free society. However, there is such a thing as judicial philosophy and the body politic should have the ability to influence the judicial philosophy under which they are governed over time. 

Structurally striking that balance is difficult. For judges to be truly independent, they cannot be politically accountable for decisions in individual cases. The influence over judicial philosophy needs to be exerted indirectly and over time. 

I have always felt that retention elections were the Achilles heel in the Arizona system of providing for an independent judiciary. There was always the danger that some political faction or other would mount an anti-retention campaign to punish a judge for a decision made in an individual case. And, indeed, there have been some nascent attempts at such a campaign in recent years.

For years, I’ve advocated getting rid of retention elections in favor of a modified version of the federal system: Nomination by the governor, confirmation by the state Senate. But for a set term long enough, say 8 to 12 years, to provide a strong measure of independence. Judges would be eligible for reappointment through the same process, but it wouldn’t be automatic, offering a window to nudge the governing judicial philosophy one way or the other if desired by the political forces in place at the time.

Judicial philosophy is a relevant consideration mostly at the appellate level. Trial bench judges are bound by precedent and deal overwhelmingly with quotidian matters for which judicial philosophy is irrelevant. Any cases they do initially handle in which it is relevant are almost certain to be appealed. 

My friends who are trial lawyers uniformly say that merit system trial court judges in Arizona are a real strength of our judicial system, honest, competent, and generally expeditious. So, my proposed reform would have left their appointment process as is, with any discipline or ouster left to the oversight of the state Supreme Court. 

The deterioration of the confirmation process at both the federal and state levels has given me second thoughts about this. At the state level, the gross abuse of the confirmation authority by MAGA Republicans thwarting Gov. Katie Hobbs’s ability to staff her administration with competent managers of her choosing pushed me over the edge. At this point, it would be a serious setback to providing an independent judiciary to require judges to run a confirmation gauntlet through the state Senate.

So, I think SCR 1044 provides the right reform at this time, and would usefully remove a potential vulnerability to providing and maintaining an independent judiciary.

That said, the politics of the reform to this point surprises me. The measure has passed the Senate and its committee of reference in the House. Thus far, every Republican has voted in favor of the referral and every Democrat has voted against it.

The surprise is that, historically, populist conservatives, the dominant strand among Republicans in the Legislature, have favored more political accountability for judges, even preferring their direct election rather than selection through the merit system. In my view, historically they have badly discounted the importance of an independent judiciary to the rule of law, and the rule of law to the maintenance of a free society. Yet, so far, nary a Republican has voted against SCR 1044.

The uniform opposition of Democrats so far is a real shock. There have been some rumblings on the left about mounting an anti-retention campaign against some judges for specific, individual case decisions. However, if a successful anti-retention campaign were ever mounted over a few specific decisions, it is far more likely to come from the MAGA right than the progressive left. 

In the MAGA election cases, our judges have been stalwarts. Democrats should consider what would be the consequences if one of them were taken out in a retention election for it. 

Generally getting rid of retention elections should be a bipartisan cause for everyone committed to an independent judiciary. This referral isn’t an attempt by GOP lawmakers to bypass the Democratic governor, as so many under consideration are. The current system of retention elections is embedded in the state Constitution and can only be changed by a vote of the people. 

It is a welcome surprise that GOP legislators seem willing to give voters that chance. Rather than fighting it, Democrats should swing mightily behind it.   

Reach Robb at robtrobb@gmail.com.