Arizona judges absolutely make political rulings, and voters deserve to know
An Arizona Republic column bemoaned Civic Engagement Beyond Voting’s work to educate voters about the judges on their ballot, saying we “have declared open season on Arizona judges.”
If “open season” means giving Arizona voters critical information about the judges seeking retention, then we accept the charge.
Columnist Abe Kwok argues we should insulate judges from meaningful public supervision and supports Senate Concurrent Resolution 1044, a Republican-sponsored ballot referral that would eliminate Arizonans’ ability to weigh in on judges at the ballot box (except in the rare case of clear or criminal malfeasance).
It also would void the results of this November’s judicial retention election.
Arizona Supreme Court rulings are political
It’s not surprising that this measure is supported by the Arizona Judges Association.
It would free them from pesky public oversight and allow them to make critical decisions about virtually every aspect of our daily lives — from our reproductive health care to voting rights, public education, free speech and more — without interference.
Rep. Jacqueline Parker, in a House amendment to the bill, had the gall to title this resolution “The Judicial Accountability Act of 2024,” truly an upside-down name for a near-complete removal of accountability.
Kwok would have Arizonans believe that the decisions made by our courts aren’t political — which couldn’t be further from the truth.
The Arizona Supreme Court’s now internationally known April 9 decision to enact Arizona’s 1864 territorial ban on abortion was a 4-2 split decision.
Judges use experiences to interpret the law
It’s hardly a coincidence that the four justices in the majority were all appointed by former Republican Gov. Doug Ducey, who expanded the Arizona Supreme Court against its own justices’ wishes and then packed it with his appointees.
As Ruth Marcus wrote in The Washington Post, the decision is “the predictable and intended result of a different and more insidious form of politicization of the judiciary: court-packing by Republican governors.”
No matter how many times judges declare that they’re only “calling balls and strikes,” we all know that it’s their task to not just read the law, but to interpret it — otherwise, every decision would be unanimous.
Judges bring widely varied perspectives and prior experience into their courtrooms. These create the frame through which they read and interpret the law, and spirited dissents from justices in the minority of any decision show that a judge’s frame significantly shapes their legal interpretation.
In fact, we depend on the judiciary to bring their viewpoints to their work, helping to guide our society into a lawful but ever more perfect union.
Voters deserve to know judges' affiliations
It’s in the interpretation of that perfection that we differ.
The majority opinion that reinstated the 1864 abortion ban tried to preempt accusations of politicization, stating ??”[t]his case involves statutory interpretation — it does not rest on the justices’ morals or public policy views regarding abortion.”
But we know the judiciary, like any public body, is not neutral.
Our 2022 Gavel Watch informed the public that one of the judges up for retention embraced the ideologically right-wing Federalist Society, about which an op-ed in Bloomberg Law commented, “In more recent years, the judicial selection process has taken a sharp ideological turn that is damaging to our democracy and our Constitution. A primary reason for this extraordinary shift in the courts is the overwhelming influence of the Federalist Society.”
It’s entirely relevant to bring this affiliation to the attention of voters.
Voters deserve recourse on out-of-touch rulings
Arizonans currently possess the right to vote on judges because of a voter-approved 1974 initiative supported by Sandra Day O’Connor, which enacted a merit selection system of appointing and retaining appellate judges and trial court judges in our most populous counties.
This gave Arizonans a democratic voice in the most undemocratic branch of government.
What is the public’s recourse if judges impose their unreasonable and out-of-touch preconceptions and interpretations on the public, as they did on April 9?
GOP only pretends: That it wants input on abortion law
It is wrong to insulate judges from meaningful public accountability or assume that outright criminality, bankruptcy or gross malfeasance are the only factors Arizonans should use when evaluating judicial performance.
The Republican lawmakers pushing this bill pretend that eliminating judicial retention would save voters from worrying our silly heads about something so complicated as judges.
But Arizonans care about all three branches of government. We know that our right to weigh in on the judges whose decisions help shape our lives is not only important, but essential to the future of our democracy.
Catherine Sigmon is co-founder of Civic Engagement Beyond Voting, which publishes Gavel Watch, a biennial guide to judges on the ballot in Arizona. On X, formerly Twitter, @azcebvus.
This article originally appeared on Arizona Republic: Arizona judges make political rulings, and voters should know