A good story—plus video—just ran in the Capitol Times on the subject of merit selection of judges—if we do say so ourselves.

The back-patting has nothing to do with any work done by me or Arizona Attorney Magazine. It arises from the fact the John Phelps, the State Bar of Arizona CEO, was interviewed and featured prominently in the article. In fact, he was videotaped for an interview. Take a look.

The story and photo are by Cronkite News Service writer Channing Turner. (You can read the story here.)

He reports that a compromise—SCR 1001—was hammered out that would allow the State Bar to continue to have a role—albeit diminished—in the selection of those who would serve on the judicial nominating commissions. Who in turn would recommend names of judicial candidates to the Arizona Governor. Who in turn would make a judge appointment.

The Bar’s role is attenuated, yes, but as John Phelps says, the alternative was that the Bar would have had no role to play in judicial selection. Given that Arizona’s attorneys are the ones who interact most regularly with state court judges, that would have been an unfortunate result.

The compromise will head to the ballot for an up or down vote by Arizonans.

As I said, the Cronkite reporter’s story was a good one. But inquiring viewers have to ask: As he taped and interviewed, did he spy anything out of the ordinary in John Phelps’s office? Did anything surprising just beyond John’s right shoulder catch the reporter’s eye?

Was that … a crown?

Hmmm. As John Phelps was communicating the position that the Bar is not elitist and out of touch, there sat a bejeweled crown on his credenza. (OK, it’s a “cabinet,” but “credenza” sounds more elitist.)

Well, hold up. I am not here to blow the lid off a Bar that is a mini-Versailles in the desert. It is not. There is a perfectly good explanation. Honest.

As the Royal WeddingTM approached last Friday, some unnamed souls thought it would heighten the revelry at the Bar’s Board of Governors meeting held the same day to offer the headgear—temporarily—to the Bar’s own President, Alan Bayham Jr. Kind of Will + Kate + State Bar.

John Phelps, kingmaker, speaks, as Alan Bayham abdicates.

At the appointed moment, John Phelps did indeed offer Alan the crown. He donned it in good spirits, but swept it off his royal head before I was able to snap a photo—though I did manage to catch Alan setting it down on the Board table. Uneasy lies the head, y’know.

And no. No one said, Let them eat cake.

We’ll have more on SCR 1001 as it moves toward the November ballot.

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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.

Grady Gammage Jr.

The way we pick judges has all the makings of a yawner, right up there with shareholder voting rules and ski-lift instructions. And yet in Arizona and across the country, the topic is red hot.

This year, as in the past, the Arizona Legislature is considering some bills that would alter what many argue is the flagship method for judicial selection in the nation. As Morrison Institute executive director Sue Clark-Johnson said, “Arizona has been considered a model in the United States.”

In response to the possibility of Legislative action, the Morrison Institute at Arizona State University hosted a panel presentation on the topic on Tuesday, Feb. 22. (I previously posted some event photos at the Arizona Attorney Magazine Facebook page.)

Held at the ASU downtown Phoenix campus, the roundtable included:

  • State Senator Adam Driggs (R-11), a member of the Senate Judiciary Committee
  • Hon. Ruth V. McGregor, former Chief Justice, Arizona Supreme Court
  • Hon. Mary M. Schroeder, Judge, U.S. Court of Appeals for the ninth Circuit
  • Hon. William J. “Bill” O’Neil, former judge, Arizona Superior Court for Pinal County (and now the state’s Presiding Disciplinary Judge; we wrote about him in the January issue of AzAt)

The moderator was lawyer Grady Gammage Jr.

Former Arizona Chief Justice Ruth V. McGregor

The roundtable was great, as far as it went. But events like this come perilously close to the scenario of heartfelt preachers assaulting the ears of the choir: They tend to be slated from a particular point of view, which the audience shares. The only mystery is will there be catering?

Given that, how do you achieve a vibrant evening, one where the assembled learn something new and important about the topic?

Have a great moderator.

Props to all the panelists, but Grady Gammage did his job with elán. He poked, prodded and incited the four panelists. And although he pretty much agreed with them about everything, he spent the evening playing the role not of the agreeable piece of furniture—the death knell for a roundtable—but of the mildly disagreeable event interloper.

Mind you, when I say disagreeable, I heap the greatest of praise. For the moderator who plays devil’s advocate is the audience’s surest friend. His insistence on hard answers from speakers sharpened their presentations and made their positions crystal clear. It made them and their presentation look even better.

The evening opened with remarks by Sue Clark-Johnson and Dr. David R. Berman, an Institute research fellow. Berman gave a historic overview of the state’s merit selection process.

And then Gammage explained the political landscape that faces that process. In the current Legislative session, he said, there are currently 10 House Concurrent Resolutions (HCRs) and one House Resolution (HR) that would alter that process in some way.

  • Most of the proposals would add Senate confirmation.
  • Two would remove the State Bar of Arizona from the process.
  • One would change the length of judges’ terms.
  • One would retain Pinal County as a judicial election county (its growing population would otherwise automatically make it a merit-selection county).
  • One would require the Commission on Judicial Court Appointments to rank the nominees whose names it forwards to the Governor.
  • One would allow the Governor to add names of her choosing.
  • One would require Senate reconfirmation of judges.

Chief Justice McGregor was especially concerned about the Senate confirmation idea: “It seems intended to make the process more political, and nothing else.”

Sandra Day O'Connor makes a point at the roundtable discussion.

She continued, “When people say, ‘Judges are nothing but politicians in robes,’ that is wrong, and not the case in Arizona.”

Senator Driggs tried to give some insight into the thinking of his colleagues, especially in regard to the Senate confirmation idea.

“I think some may have visions of C-SPAN in their heads, a big vetting process [like U.S. Senate confirmation]. It’s a little bit of a fantasy, like all of a sudden everyone will be down there and paying attention.”

McGregor added what became a recurring theme of the evening—what exactly is broke that requires fixing?

“Most who have studied the Arizona merit-selection system say that it is the best. Even the U.S. Chamber of Commerce has said [to other states], ‘We don’t take a position, but if you have merit selection, follow Arizona.’”

Gammage got some laughs and raised eyebrows when he asked Judge O’Neil if Pinal County was resisting “becoming a grown-up county” and adopting merit-selection. O’Neil took issue with the question—not the “grown-up” moniker, but with the inference that residents wanted to keep judicial elections. He said that the majority of the county would like to be a merit-selection jurisdiction.

O’Neil added that in preparation for the move to merit-selection, the court there began performing trial-run internal reviews, which would become the norm under the new process. And in a county where the judges have always been elected, he said that “not all did that well.”

Judge Mary Schroeder shared more background about merit selection. She reminded everyone that Judge Thomas Tang, a respected jurist, was thrown out of his elected judgeship because of a single criminal case.

In response, “The business community got merit-selection passed in a referendum.”

She also was troubled by the seeming hostility toward any organized bar association. She recalled a previous battle over splitting the Ninth Circuit Court of Appeals. In testimony to Congress, Microsoft General Counsel Bill Neukom spoke in favor of the current Circuit. Many advised him to “play up” his Microsoft connection, and to downplay the fact that he was the President-Elect of the American Bar Association.

Gammage did not let the group off that easy, though. He urged them to discuss the ballot that contains “all those names” of judges standing for retention election.

“No one knows what to do with all those names. What an insulting process. If we agree that it is meaningless, and that it is not likely to have much impact, what is it for?”

“What is the effect on civic expectations,” he continued, “in what amounts to an essentially meaningless exercise? If the result is that 1 out of 50 gets marginal ratings, why send the names to the ballot at all?

Of course, panelists did not agree with his premise. But they did acknowledge that it creates a challenge for voters.

McGregor, Schroeder and O’Neil agreed that merit-selection’s very existence may serve to persuade those with more meager skills from seeking a judgeship in the first place. And that would mean those seeking to be retained would likely have high ratings

And Senator Driggs also spoke in favor of merit selection.

“I don’t care if someone is charismatic and goes to neighborhood picnics. I want them to know the Rules of Evidence.”

Finally, in the audience Q&A portion, a slight woman raised her hand and patiently waited her turn. When Gammage called on her, Sandra Day O’Connor, former Associate Justice of the U.S. Supreme Court, spoke loudly enough for everyone in the room to hear.

“I grew up on a ranch, and we followed the motto of, If it ain’t broke, don’t fix it. Well, it ain’t broke, and I don’t know what changes they’re going to implement.”