Robert Robb

Whenever a commentator starts with the “Truth is somewhere in the middle” scenario, you can be assured of one thing:

You’re going to have to work hard to excavate his real thesis, for it’s nearly certain that his preferences lie on one side of the argument over the other.

And that’s the case with Robert Robb’s lecture on merit selection in this morning’s Arizona Republic, titled in a moderation-is-all tone “Small Fix Is Best For Merit-Selection System.” Let’s see his fair-minded lede, shall we?

“Arizona’s merit-selection system for choosing judges isn’t as bad as critics maintain. On the other hand, it’s not as virtuous as defenders assert.”

Holy cow, who could disagree with that? His decades of reporting experience have revealed to him that humans and their positions are flawed.

Gosh darn it, that’s a fair-minded journalist, just telling it like it is, balls, strikes—you know the drill. And that opening prepares you to accept as reasonable the conclusions he draws at the end of his column—if you get there. For many readers, that milquetoast opening will cause them to say, “Nothing to see in merit selection. Sounds like some tweaks are in the works. All is good in the world.”

In that view, his conclusions are more a modest proposal than A Modest Proposal.

But when a polemicist uses that truth-is-in-the-middle rhetoric, it is in the middle—of his column—that you have to read carefully to see what’s up.

And it’s there that Robb goes after the courts with both barrels:

“In the 1990s and the early 2000s, however, there was a serious problem with an imperial state Supreme Court. During that period, justices decided that the state Constitution no longer would accept the system of funding school construction that had lived comfortably alongside it since statehood and that it somehow required the public funding of some abortions.

“They started tossing some propositions off the ballot. The only common theme among those that got tossed was that they promoted conservative causes.

“The justices even appointed themselves editors in chief of the ballot-publicity pamphlet, in one case censoring a warning from the legislative budget staff that expanding the Medicaid population might end up costing the state general fund big bucks. Which, of course, it did.

“There is no one left on the current court from those imperial days, and the current court is charting a much more circumspect role.”

Where, as they say, do we begin?

I think it was Henrik Ibsen who said that if a playwright has a rifle over the mantle in Act 1, it is certain that it will be taken down and used in Act 3.

Well, if we’re tossing around terms like an “imperial court,” we’re bound to think that a revolution is in order. We Americans are like that (think “Don’t Tread on Me”).

Robb usually writes with a pretty subtle understanding of what lawyers and judges really do—which is appreciated and pretty rare. But his examples from the “crazy” 1990s leave me underwhelmed. A few anecdotes don’t prove that the Supreme Court got any more “activist” in that time period. And if it was a busier court then, that would coincide with a time when the Legislature—and what it created—grew to be more partisan and imperial. Maybe they had to get active just to keep up with the increasingly active Lege. You know, checks, balances and all that.

And I had to smile when I saw some of Robb’s examples are in education. As we see our state’s race to the bottom of the country’s educational heap, it’s almost a laugh riot that he would spank the Court for its past efforts at equity and efficacy.

In fact, just pages before Robb’s column today, we hear how former Intel CEO Craig Barrett advised the Legislature that if that company were looking today for where to expand, “I hate to say it, but I think Arizona would not be in the top 10 locales to make that investment” (“Former Intel CEO Blasts Education in Arizona”).

Hmmm, it almost sounds like education is related to the economy or something.

On a related matter: As merit-selection issues develop here in Arizona, there is another question that I am interested in.

Thus far, the Arizona Supreme Court and the State Bar of Arizona have been strong partners in working to maintain the merit-selection system. They both are adherents of the maxim, “It’s not broke, so it doesn’t need fixing.”

But as bills get dropped at the Lege, distinctions in their positions may be necessary. For instance, some of the proposals maintain merit-selection with some small changes—one of which is a diminishment in or elimination of the State Bar’s role in choosing judges. That role is already modest, but some lawmakers want it gone, gone, gone.

As the bus rolls past, will the State Bar be under it? And will the Court support bills that save the bulk of the system, even if the Bar is marginalized? That would put the State Bar to a choice: Stand down, or advocate a position that is not on all fours with the Court.

And if the Bar does work to preserve its role, does it do that now, at the Lege, or wait until a ballot resolution is put to the voters?

Either way, the year grows more interesting by the moment.

Read Robb’s entire column here.

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