I don't need to be a Supreme Court justice. But Arizona needs the system that got me here

Fifty years ago, Arizona voters adopted then-state legislator Sandra Day O’Connor’s proposed judicial merit selection system.

It is one of our state’s crown jewels, producing judges of great integrity, quality and fairness — while providing the means to vote out those who fail to meet the highest standards.

But partisan special-interest groups are hijacking the retention process through a campaign against Justice Kathryn King and me called “Vote Them Out!” — a slogan that packs with venom what it lacks in substance.

How we reached that abortion law ruling

Extending an effort from 2022 that led to the ouster of two highly qualified judges for purely political reasons, these groups are cynically harnessing anger over our recent abortion decision to replace us with justices who will rubber-stamp their ideological agenda.

They claim the abortion decision reflected the court majority’s policy preferences rather than the law.

Nonsense.

Serious commentators, liberal and conservative, who actually read the decision (which I encourage voters to do), agree it is solidly grounded in law.

We had before us not a question of policy, or even of constitutionality, but simply whether the Legislature in 2022, following the U.S. Supreme Court’s Dobbsdecision, restored an earlier abortion restriction.

After careful analysis, we concluded it did.

Arizona Supreme Court is guided by the law

In a poignant historical moment, my legislator wife immediately joined the effort to overturn our ruling. That caused no marital disharmony because she is a policymaker and I am not.

Shortly thereafter, the Maricopa County Republican Party executive committee “censured” my court for ruling incorrectly, in its view, on certain election challenges. They should debate with their “Vote Them Out!” counterparts over whether we are a right-wing or a left-wing court.

Hint: we are neither. We rule based on the law.

I cannot count the number of cases in which I have voted against my policy preferences.  One example is when Gov. Doug Ducey vetoed nearly two dozen conservative bills over a budget dispute with the Legislature.

They were passed again, then challenged by the Arizona School Boards Association. We struck them all down because they were passed unconstitutionally as part of the budget rather than as standalone bills.

Progressive groups attack a progressive reform

I am the only independent ever appointed to the Arizona Supreme Court. I have dissented more than any justice in the court’s history, though I have also written dozens of unanimous decisions.

I am especially passionate about our state constitution and have authored opinions vindicating its speech and privacy guarantees, among others.

All my opinions are published at azjustice44.com — pick out a few at random and judge for yourself whether I follow the law or my policy compass.

That the groups challenging us call themselves progressive is ironic given the system they are attacking was a progressive reform. The liberal Brennan Center, much of whose work I greatly admire, remarked in a brief a decade ago that “Arizona’s merit selection system is widely regarded as succeeding in producing excellent judges.”

They warned that “[f]or the judiciary to operate fairly and effectively, it is imperative that judges make appropriate decisions under the law, not based on political pressure.”

By contrast, political pressure is what “Vote Them Out!” is all about.

Why Arizona merit selection works so well

Under merit selection, judges are nominated by bipartisan citizen commissions, appointed by the governor, regularly evaluated by a bipartisan citizen Judicial Performance Review (JPR) Commission and subject to voter retention.

The process is rigorous. As I can attest from having practiced in 18 jurisdictions and chairing the Maricopa County Superior Court nominating commission, merit selection produces some of the best state judges in the nation.

Once judges are appointed, the lawyers and parties who appear before them are surveyed, and JPR compiles and studies the results. Judges who perform poorly often retire or lose their retention elections.

I am proud that my survey results were excellent and JPR voted unanimously in April that I meet the high standards for retention.

Our system won't withstand political attacks

For nearly 50 years, the system worked as intended: judges were appointed and retained on merit, not politics.

Then two years ago, some of these same groups succeeded in ousting two judges who met retention standards but who they found politically objectionable.

Now they are back for more.

The system is not built to withstand political attacks, and judges seeking retention are at a massive disadvantage. We cannot ask people for money — and funds raised on our behalf would (and should) be scrutinized.

Our judicial ethics limit what we can talk about, and even prohibit us from endorsing each other. For those reasons, I will not have a campaign.

By contrast, those trying to take us out have no financial limits and no ethics rules.

Do we really want elections like other states?

Weaponizing judicial retention will be a disaster.

I recall that while litigating a case in Texas, where judges are elected, the lawyers assembled for a hearing were all discussing whether they were current in their contributions to the judge before whom we were about to appear.

Is that the system we want in Arizona? Should the governor have to ask potential judicial nominees whether they can raise money for retention?

Wisconsin recently had a state supreme court race in which more than $50 million was spent, much of it from out of state. Those are exactly the political toxins that merit selection was designed to prevent.

I chose a career in law over politics in large part because it has rules and guardrails. I am proud that in more than 30 years as a litigator, I never once had an ethics complaint.

As a judge I have never ruled on the basis of politics — apparently, to my current detriment. I would rather go down in electoral flames than to compromise my constitutional oath.

Arizona needs an independent judiciary

The groups opposing us need a serious civics lesson about the role of the courts.

Nowhere in their materials will you read about the importance of an independent judiciary in protecting our free society.  Instead, they think we should decide cases based on the “will of the people.”

Arizona judges make political rulings: Voters deserve to know

How do we determine that? Commission a poll? Convene a focus group? Simply assume the Legislature always reflects the will of the people?

We would never get decisions like Brown v. Board of Education — or, for that matter, the Obergefelldecision protecting gay marriage — if that was our mentality.

As Justice O’Connor put it following her retirement, “the judiciary should not respond to public opinion in its individual decisions,” but instead should be “accountable to the public for its constitutional role of applying the law fairly and impartially.”

That is what the iconic image of the scales of justice is all about.

Our court does a lot you don't hear about

Justice O’Connor warned of the danger that “a retention election will be infected with issue-based politics.”  That is exactly what is happening, placing her precious legacy in grave jeopardy.

In our state, the people have the ultimate lawmaking power, including the ability to overturn our decisions. But we cannot afford to have conscientious judges voted out for unpopular decisions.

I am proud of our court for many reasons beyond our jurisprudence.

Applying our regulatory authority over the legal profession, we created a new profession — legal paraprofessionals — who are extending low-cost legal services to many who previously could not afford them.

We were the first court to heed Justice Thurgood Marshall’s long-ago call to abolish peremptory jury strikes, which has led to more representative juries.

I chaired a task force on no-knock warrants that led to the adoption of model national standards.

If you are unaware of these important accomplishments, it is because they do not fit the media narrative and were hardly reported.

It's game over if judges look over their shoulders

Until recently, I was undecided whether to seek retention.  After all, mandatory retirement means I am eligible to serve only three more years.

But I cannot stand aside when our merit selection system is under attack. We cannot have judges looking over their shoulders to assess the political fallout of their decisions.

If they do, it is game over for the rule of law.

I am an unlikely judge.  My dad was a welder with an eighth-grade education who died when I was 11, and I was raised by a single mom.

I was the first person in my family to graduate from college and was still repaying my loans when my oldest son started college. I never aspired to being a lawyer, much less a judge on one of the finest courts in the country.

I don't need this job, but Arizona needs this system

That means I do not take a single moment for granted.

I have paid it forward by mentoring hundreds of young women and men from high school to law school and beyond, some of whom are now themselves judges.

I teach constitutional law every fall at Arizona State University. Every year I speak to dozens of student and community groups, and co-founded a mentoring group for young female professionals.

My judicial assistant complains that I never say no, whether it is coffee meetings with aspiring judges, swearing-in officials and new lawyers, or performing weddings (my favorite part of the job, especially during COVID-19).

Even though I love it and am honored to hold it, I do not need this job.

But we do need this system. And I will do everything I can to pass it intact to future Arizonans.

Clint Bolick is an Arizona Supreme Court justice.

This article originally appeared on Arizona Republic: Arizona Supreme Court could forever change if 'Vote Them Out!' works