Yes on Bolick and King, No on Prop. 137

The anti-retention campaign illustrates the threat retention elections pose to an independent judiciary, but Prop. 137 has too many flaws to be an acceptable alternative.

I’ve long been a critic of Arizona’s system of retention elections for judges. 

An independent judiciary is a bulwark of individual freedom and constitutional government. There is such a thing as judicial philosophy and there should be mechanisms by which the body politic can influence the judicial philosophy under which they are governed. However, to preserve judicial independence, that influence needs to be indirect and over time. Holding judges politically accountable for individual decisions in real time erodes judicial independence and the rule of law. And, to me, Arizona’s retention elections were ripe to be used in precisely that deleterious way.

And, sure enough, this year the process is being used in that way against Supreme Court justices Clint Bolick and Kathryn King, who are facing the most well-financed and well-organized anti-retention campaign in Arizona history. 

The campaign is being conducted against them strictly because of their being part of the court majority who held that, post-Dobbs, a law that prohibited abortions except to save the life of the mother came back into effect.

In a juvenile satirical pro-argument in favor of Proposition 137, which would do away with these retention elections, former Tempe City Council member and current legislative candidate Lauren Kuby wrote in the official publicity pamphlet: “These two justices decided to ban abortion in Arizona without exception.”

That’s not what the court’s majority decided at all. They decided that was what the Legislature had decided. And it wasn’t a difficult legal conclusion to reach, since the Legislature said it plainly and directly.

The court expressed no opinion about what abortion policy should be. It correctly held that, post-Dobbs, that decision belonged in the legislative process. And it correctly concluded that the Legislature had decided that, if Roe were overturned, Arizona’s pre-existing, comprehensive abortion ban would be the prevailing law.

That left the issue where it belonged, in the legislative and political process. And reaction in that process was quick and consequential. The Legislature quickly changed course and repealed the comprehensive abortion ban, leaving in place a law permitting largely unlimited access to abortion up to 15 weeks of pregnancy, which legalized the overwhelming majority of abortions. And an even more expansive abortion law is before voters in the form of Prop. 139.

So, nearly all abortions are now legal in Arizona and the law may get even more permissive. Yet, because Bolick and King did their job by not deciding abortion policy but affirming what the Legislature had plainly declared it to be, there is an ill-informed and ill-motivated organized effort to boot them from the court.

Both Bolick and King are manifestly qualified to be Supreme Court justices.

Even before being appointed to the bench, Bolick was nationally renowned as a legal scholar and practitioner. In the survey conducted by the Commission on Judicial Performance Review, respondents rank the justices, based upon their experiences, in the categories of legal ability, integrity, communication skills, judicial temperament, and administrative performance. Bolick’s rankings of satisfactory or better ranged from 97% to 99%. 

King’s rankings were also strongly impressive, ranging from 90% to 96%. And this actually understates the high regard conveyed by those who have interacted with them. For both Bolick and King, nearly all the respondents ranked them superior or very good, not just satisfactory. 

Now, these surveys have a low response rate. But those with a beef would have a greater motivation to respond, which makes these sky-high rankings even more instructive.

Simply put, those who have direct experience with Bolick and King almost uniformly believe they are not just satisfactory justices, but excellent ones. So, what is the message if they are thrown out on their ear for what, as a legal matter, was a routine interpretation of legislative intent? Particularly for an opinion which neither of them actually wrote, but only agreed with?

An equally misinformed but revealing passage can be found in another opposition argument to Prop. 137 submitted by Jennifer Guzman of Common Cause. In opposing the abolition of retention elections, Guzman wrote: “This is why Arizonans should get to decide whether or not judges should continue representing them.”

Judges don’t “represent” us. We elect legislators and a governor to do that. Judges are supposed to apply the law and dispense justice, irrespective of what a majority might want or how unpopular a decision might be. That’s their role in our constitutional system of limited government. 

The anti-retention campaign against Bolick and King demonstrates the threat these elections pose to an independent judiciary. However, there are too many problems with Prop. 137 for it to be an acceptable vehicle for getting rid of them.

When I wrote favorably about the idea early in the legislative process, I had overlooked its retroactive clause. If passed, it would invalidate any non-retention vote occurring this year. As troubling as I think it would be for Bolick or King to be rejected because of a legally unobjectionable decision, invalidating such a result would be democratic dirty-dealing and a democratic insult. 

It was also politically stupid. It practically ensures the defeat of the proposition and actually makes a non-retention vote for Bolick and King more likely. Any changes should only be prospective. 

Since I last wrote, legislative Republicans added other disqualifying provisions. It gives both chambers of the Legislature the right to directly appoint a member of the Commission on Judicial Performance Review. And worst of all, it gives every legislator the authority to trigger an investigation of any judge by the commission. There’s no reason to give complaints about judges by legislators greater standing than the complaints of anyone else, and given the current MAGA GOP majority, ample reasons not to. And even if the Legislature was populated by saints, this provision would violate the separation of powers principle underpinning our constitutional order. 

In the publicly pamphlet, the no arguments are replete with claims that, without retention elections, there would be no accountability for judges. That’s far from the case.

Under the state constitution, the Supreme Court can suspend or remove a judge for “wilful misconduct in office, wilful and persistent failure to perform his duties, habitual intemperance or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” There is a Commission on Judicial Conduct to oversee and police the performance and behavior of judges.  

Judges are subject to recall and impeachment. And, in Arizona, even without retention elections, judges wouldn’t be granted lifetime tenure, another common inaccurate claim in the no arguments. Unlike the federal system, Arizona has a mandatory retirement requirement for judges at the age of 70. That means that the governor elected in 2026 will have several Supreme Court openings to fill, irrespective of how retention elections go from now ‘til then. 

At the time the merit selection system for judges was adopted, all judges in the state were elected in contested races. The retention election idea, in which there is no actual opponent, can be seen as a way of finessing a diminished role for voters as part of a move toward a more independent and professional judiciary.  

In reality, internal judicial branch policing, recall, and impeachment are accountability measures more in keeping with that objective. The threat of retention elections to an independent and professional judiciary has now manifested itself in the anti-retention campaign being conducted against Bolick and King. Regrettably, Prop. 137 has too many flaws to offer an acceptable alternative. 

Reach Robb at robtrobb@gmail.com.

Note to readers: I will undoubtedly be analyzing other ballot measures, although I might not get to all of them. In addition to this Substack, I maintain a robertrobb.com website, where I post links to all my writings. There is a “Ballot Measures” button on the front page, which will take you directly to columns about the propositions, for those interested in seeing the analyses in one place.