If voters oust judges over an unpopular abortion ruling, Arizona has much bigger problems
It is time for Arizona to rethink retention elections of judges.
The issue gained urgency this week following the Arizona Supreme Court’s decision upholding the 1864 near-total abortion ban.
The decision supercharges this fall’s election races, including the retention of two justices who were part of the 4-2 majority in the case.
It’ll surprise no one if activists use it as a campaign to oust them.
A dangerous and misguided campaign that would undermine judicial independence.
For which a solution seems readily at hand — except for one highly questionable element that very well might doom it.
Time to end most judges' retention elections
Senate Concurrent Resolution 1044 would ask voters to abolish retention elections for judges in Superior Courts and those serving in appellate courts, including the state Supreme Court, except for a few circumstances.
Most notably, instances when the Commission on Judicial Performance Review deems a judge unfit for office.
The resolution has cleared the Senate and the House committee on municipal oversight and elections.
It is a proposal with merit. Mostly.
Judges should not face job vulnerability for simply doing their job of interpreting and applying the law. Even if it results in a hugely unpopular decision.
And historically, they had not. But we have reached a point in our politics that no one gets spared of retaliation.
Supreme Court is blamed for doing its job
Already, much has been made since Tuesday’s ruling about former Gov. Doug Ducey’s expansion of the high court to seven members from five and his appointment of the four justices who voted to uphold the 1864 ban.
The implication being that the ruling was driven by politics when, in fact, the judges had simply carried out their duties.
Voters should seek justice: On anti-abortion justices
One of the dissenting justices took pains in her opinion to acknowledge the blowback that “controversial social-issue cases like this one” would generate for the court. She emphasized that the vehement disagreement with her colleagues is “about what those laws mean,” not because of ideology.
Arizona judges’ increasing vulnerability in retention elections is not mere conjecture.
Unpopular rulings can give a judge the boot
In 2022, Supreme Court Justice Bill Montgomery earned “meet standards” votes from an overwhelming majority of the Commission on Judicial Performance Review, a panel of judges, attorneys and public members that pores over surveys and comments from jurors, witnesses and attorneys.
He won retention by only about 10 percentage points. In Maricopa County, where he had served as county attorney before his court appointment, he actually lost by a couple of percentage points.
(Montgomery recused himself from the abortion case, following a firestorm over his public criticism and opposition to abortion as county attorney, including an inflammatory comment he posted on social media.)
In the same election, voters ousted three judges, two of whom had garnered more “meet standards” votes than “do not meet standards” votes. Until then, only three judges had lost retention in the 40-plus years the system has been in place.
That’s to say, even judges who got a favorable evaluation from the commission have become susceptible to getting the boot.
Ballot measure has a fatal flaw
SCR 1044 would insulate judges from that precariousness.
The problem with the proposal is with its application.
Sponsors of the bill decided to attach a retroactive provision that nullifies all the results of the November election should the measure pass — regardless of whether voters approved the judges for retention or ousted them.
In other words, it would shield all judges, including the two vulnerable Supreme Court justices, from removal. After the fact.
Never mind the intent, the optics are terrible.
It lends credence to the belief that conservatives introduced a Trojan horse to rescue the justices their party helped install.
Nix that bit and press for bipartisanship
SCR 1044 already suffers from partisanship:
No Republican has voted against it, and no Democrat has voted for it, even though this provision was not a point of their opposition.
It’s regrettable because the proposal otherwise deserves bipartisanship.
SCR 1044 would shield the myriad judges who upheld the election process as much as the Supreme Court justices who upheld the Territorial Days abortion ban.
Protecting judicial independence is worthy of support regardless of political affiliation.
And Arizonans should at some point be given the opportunity to grant that protection.
But Republicans would be best served to pause or amend the bill and not test the will of the voters.
Else they’ll reap the whirlwind, indeed.
Reach Abe Kwok at [email protected]. On X, formerly Twitter: @abekwok.
This article originally appeared on Arizona Republic: Arizona abortion ruling should not cost judges their jobs