In Arizona, all judges used to run for election statewide.  Then in 1974, Arizona voters amended the State Constitution to create a “merit selection and retention” system.  The primary rationale for merit selection is to avoid putting judicial impartiality and integrity at risk by forcing judges to solicit campaign contributions from attorneys and other people who might someday appear before them.  Two-thirds of states in the United States and the District of Columbia use some form of merit selection to choose their judges.

Merit Selection Process:  Through Arizona’s judicial merit selection process, the Governor appoints appellate court judges statewide and superior court judges in counties with a population greater than 250,000 (currently Maricopa, Pima, and Pinal Counties).  Lists of nominees are submitted to the Governor by judicial nominating commissions.  There are four of these nonpartisan commissions:  one for appellate court appointments, and one for each of the counties listed above.  Each commission is comprised of 10 public members, 5 attorneys and the chair, who is the Chief Justice of the Arizona Supreme Court or her designee.  When volunteers are needed on a judicial nominating commission, the Governor’s Office makes applications available to anyone who is interested.

The merit selection process begins with through applications from judicial candidates.  All commission members review the applications and investigate the applicant’s qualifications, then meet to decide which applicants will be interviewed.  The selected candidates are further investigated prior to the interviews.  The commission decides which candidates to recommend to the Governor after the interviews.  They must submit at least three names to the Governor for each judicial appointment, based on a variety of factors.  However, merit – the candidate’s professional qualifications — is the primary consideration for judicial nomination.  To lessen the impact of partisan politics, the Constitution provides that no more than 60 percent of the nominees on any given list may be members of the same political party.  Ultimately, the Governor appoints one of the finalists from the names submitted by the commission.

Retention:  After their appointment, Judges are periodically subject to retention election.  They do not run campaigns against anyone.  Each judge is simply subject to a vote of confidence that determines whether they get to keep their job on the bench.  A Judicial Performance Review Commission helps inform the electorate.  The Commission is comprised of 18 members of the public, 6 attorneys, and 6 judges.  The Commission receives significant input from jurors, litigants, court staff and attorneys.  More than 60,000 surveys on Arizona judges were distributed in 2013.  The Commission also accepts written comments at any time about the performance of judges.  Once all of the survey responses are compiled, the Commission assesses the performance of each judge to determine if he or she is meeting judicial performance standards.  This information is made available to the public before the retention election.

Benefits:  Arizona’s merit selection process relies on strong public involvement, which ensures a democratic process.  Many checks and balances exist in this merit selection system, which also ensure accountability.  This process helps produce a highly qualified judiciary.  Some qualified attorneys might be unwilling to risk their practice on an expensive political campaign if they were required to run for election.  Some candidates might never run in an election because it can be driven by demographics instead of qualifications.  The appointment process allows the commissions to consider a wide range of factors to elevate candidates based on merit, and improves judicial impartiality because judges do not accept campaign contributions from any person, business or organization.

Judicial Election in the rest of Arizona:  In all counties of Arizona other than Maricopa, Pima and Pinal, the superior court judges are elected.  Justices of the Peace in all counties are elected as well.  When first introduced, elections were viewed as a way to insulate judicial nominations from the perception of corruption.  However, election of judges risks corruption by campaign contributions.  It comes with the benefit of direct accountability to the electorate, but the risk of corruption is similarly direct.

Additional Layers Of Accountability.  Neither merit selection nor election of judges is a perfect system.  Both are subject to a certain amount of political influence.  As a result, there are additional layers of accountability.  For example, decisions from all elected judges are subject to appeal.  In addition, there is a Code of Judicial Conduct that can be enforced by complaint to the Arizona Commission on Judicial Conduct.

In the balance, we believe that appointment based on merit is the better system, but reasonable minds can differ.  In our next blog, we will examine a 2009 United States Supreme Court case over whether an elected state supreme court judge should have recused himself from deciding a case after receiving $3 million in campaign contributions from persons affiliated with one of the litigants.  At first glance this may seem like an obvious issue, but it made it to the Supreme Court and resulted in a decision with passionate majority and dissenting opinions.

 

Written:  9/2/14

Approved:  9/9/14

Published:  9/10/14

Categories:  Judicial system

Key Words:  merit selection; election of judges; campaign contributions to judges

Title:  Appointment vs. Election of Judges in Arizona

Description:  The election of judges raises many concerns that Arizona’s merit selection system aims to avoid by improving judicial impartiality.

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