On July 27, I attended a panel discussion that aimed to give insight into judges’ thinking. And that’s something that most lawyers find of interest.

The event was sponsored by the Directors Roundtable, based out of Los Angeles. The title was “Recognizing America’s Judiciary: A Dialogue with Chief Justices on Key Issues for Leaders of Business & the Community.”

In my editor’s column for the September issue of Arizona Attorney Magazine (on press now), I wrote about the event. (A preview of that column is at right and printed below.)

The roundtable was enjoyable, even if some of the topics are pretty well-worn. For even if we have heard quite a bit already about, say, merit selection of judges, it’s still a wake-up call to hear how vehemently the Arizona Chief Justice speaks about it.

I’ve covered merit-selection developments before (as in this March panel discussion). And in the coming year’s run-up to a voter referendum on altering judicial selection, I’ll cover the continuing dialogue and debate—assuming readers find it compelling.

(Before I get to the column, I have to apologize in advance for the abysmal photography. Whenever an event is slated for the Sandra Day O’Connor Federal Courthouse, I sigh and seethe, knowing that getting a decent camera into the edifice is akin to smuggling a file in a homemade cake—even when you have permission. I secured permission for my camera through the event organizers, who then apparently failed to tell the only people who mattered—the guards at security. So please bear with the cellphone shots below.)

Here’s my column:

Choosing Our Judges

Those of you who just tumbled to Earth—or even to Arizona—from Mars may be forgiven your misunderstanding.

Chief Justice Rebecca White Berch, July 27, 2011

You may be laboring under the Mars-y notion that the way we select our judges is likely noncontroversial and straightforward.

Kind of like raising the debt ceiling.

From whatever galaxy they hailed, attendees at a July event had that impulse checked. Sponsored by the California-based Directors Roundtable Institute, the panel of judges and lawyers provided a dialogue on “Key Issues for Leaders of Business & the Community.

Participants were Arizona Supreme Court Chief Justice Rebecca White Berch, Hon. Roslyn Silver, Chief U.S. District Judge for Arizona, David Rosenbaum of Osborn Maledon, and Shane Swindle of Perkins Coie. Jack Friedman of the Institute moderated.

The dialogue by the panelists ranged far and wide, from commentary on media coverage, to crushing caseloads and security issues, to e-discovery. But the topic of how we select judges came up numerous times.

Perhaps it’s the black robes that give away little, or the judicial silence that typically repays public scorn heaped on that branch. Whatever it is, the courts have been in critics’ crosshairs for quite awhile.

David Rosenbaum, July 27, 2011

“Courts are the only branch not identified with the political process,” said moderator Jack Friedman. “But if you look at the media, we think that judges get up in the morning and say, ‘I can’t wait to get to the office to impose my views on everyone else.’”

Chief Justice Berch may not be “identified” with the political process, but she can see it from her porch. And though she shared news about court advances in technology and education, she also described the political challenges “to give a flavor of what the courts face.”

She recounted nine bills that the Legislature has considered that would alter—for the worse, in her thinking—the operation of the judicial branch. Worst of all, she said, those bills appear to solve problems that don’t exist.

If the Chief’s words treaded carefully on the matter, those of lawyer David Rosenbaum spoke more plainly.

Five years ago, he said, a similar roundtable featured then-Chief Justice Ruth McGregor and Justice Scott Bales, both of whom talked about attacks on the judiciary.

“The winds are blowing as strong now,” said Rosenbaum. “If not stronger.”

He described recent U.S. Supreme Court cases that have affected court operation and judicial selection, including Citizens United and Massey Coal. And statistics show that expenditures in judicial elections have more than doubled from the decade of the 1990s, when it came in at $84 million, to the 2000s, when it hit almost $207 million.

Here in Arizona, he and others said, we have a merit-selection system in at least a few counties. But it’s a system that’s been under fire.

A solution may lie in a ballot referendum that passed out of the Legislature in April. It will be on the general ballot in November 2012 (the State Bar has a good explanation of the legislation here).

This was a compromise among the Bar, the Court, the Arizona Judges Association, as well as the House and Senate.

Rosenbaum raised questions about the referendum: Without it, would far more harm be done to merit selection? Is it an effective compromise?

On page 76, Clint Bolick asserts his agreement with the State Bar that the compromise does its job well.

As we get closer to the 2012 election, we’ll hear from Arizona lawyers on the topic’s pros and cons. Write to me with your thoughts at arizona.attorney@azbar.org.