Steve Tully

A panel Wednesday morning at the State Bar of Arizona Convention examined a relationship often in the news—the one between the legislative and judicial branches. Speakers with experience as elected officials, lobbyists and think-tank leaders wrestled with a topic on which many find disagreement common.

“Striking a Balance: Relations Between the Legislature and the Courts” included moderator David Earl and speakers Steve Tully, Clint Bolick, Sally Rider and Jerry Landau.

Panelists opened by sharing their initial thoughts on the challenges that a good working relationship faces.

For example, Sally Rider of the UA’s Rehnquist Center said that the tension between branches is exacerbated by a failure to communicate. Jerry Landau agreed: “When one branch doesn’t understand the role of the other, we have problems.”

Bolick, of the Goldwater Institute, was more pointed in his opening remarks. After praising the Arizona Constitution, he continued.

In regard to ballot referenda, “Courts have used the single-subject rule so much as to prevent the Legislature from presenting various important issues to the people. And that is discomforting. If there is one value that our Constitution elevates above all, it is the right of the people to control their government.” Limiting referenda too strictly restricts that power. “Courts have overstepped.”

Things quickly got interactive, as attendees would have predicted on such controversial topics.

L to R: Clint Bolick, Sally Rider, Jerry Landau

Among those hot-button issues discussed was merit selection, especially as embodied in a November Arizona ballot referendum titled Prop 115. In a conference at which at least two other panels will focus on merit selection, this morning seminar grew into a significant conversation on the ballot proposition.

In fact, it was not the panel but an audience member who raised merit selection. Lawyer Tom Ryan enlivened the debate when he stood at the microphone.

“The idea that the Legislature respects the court system is a fallacy. We have a supermajority of Republicans in the House and Senate. … [The Legislature is] controlled by ALEC [American Legislative Exchange Council], and they have an agenda: to close the courthouse doors. The idea that Prop 115 will improve merit selection is a fallacy; it simply gives the Governor the unfettered ability to choose judges.

David Earl

Bolick responded, agreeing that under Prop 115 the Governor “will control far more of the system” than ever before. But he added that the State Bar currently “has a monopoly over picking the lawyer members” of the judicial nominating commissions. And Bolick said he believes that the Bar, which takes positions on many public policy issues, should not have any role.

And even under the new possible regime, Bolick added, “The system should not be controlled entirely by the Governor and the State Bar. That upsets the checks and balances system.”

Bolick said that, personally, he will probably vote yes on Prop 115, but the Goldwater Institute has decided not to take a position.

Audience member and former State Bar President Mark Harrison rose to vociferously oppose Prop 115.

“This was a compromise that did not need to happen, and which is a solution in search of a problem. Justice O’Connor supports the current system, and the Arizona Town Hall called it ‘the best functioning part of our state.’”

He concluded by saying (with a smile), “I urge everyone to vote no—as many times as you can.”

Bolick responded: “I share a lot of your concerns, but I don’t think the system is as good as it can be.” He said that lawyers may know a lot about judicial candidates, and they should provide input. “But the State Bar should not choose them.”

Former Judge Noel Fidel spoke briefly.

“It would have been better to fight than compromise. This destroys merit selection from within.”

Among the audience-speakers on the topic was Whitney Cunningham, currently the State Bar’s First Vice President (and President-Elect at the close of Convention). He rose to explain the State Bar’s role, and why it decided to support the compromise that led to Prop 115.

“What people should understand is that not preserving merit selection was a real possibility that was on the table. If this passes, the State Bar will still have a role, and a formidable role.”

“The Bar was at the negotiating table, and we did what we thought was necessary to preserve merit selection in our state.”