Retain the justices, but junk retention election system

There is a low-grade grassroots effort being mounted against retaining Supreme Court justices Clint Bolick and John Pelander in the November election.

At this point, it doesn’t seem to amount to enough to threaten their retention. But it does point out the vulnerability these retention elections pose to an independent judiciary and the need to find an alternative.

First it must be said that these are both excellent justices.

Prior to being appointed to the bench, Bolick was a prolific author and a highly respected and influential legal thinker on the national level.

His book, “David’s Hammer,” changed the way conservatives view and talk about the appropriate role for the judiciary. Whether a court was “activist,” once a common conservative complaint, wasn’t the point, Bolick maintained. It was what

the court was activist about. Activism in defense of protected liberties and enforcing limits on government action was what was intended from an independent judiciary.

I don’t read every state Supreme Court decision, and I am far from an expert on it. But I read enough of them to have formed some impressions.

My impression of Pelander is of the consummate neutral jurist. Conscientious and thorough, giving individual attention to the specifics of the case before him. Grounded in the law and following faithfully to the result to which he perceives it points.

I can’t imagine any litigant standing before the court thinking he knows how Pelander is going to rule.

Both Bolick and Pelander have skyhigh ratings from the lawyers who have appeared before them for legal ability, judicial temperament and integrity.

The low-grade opposition effort is coming from, or was at least threatened by, disgruntled supporters of the Invest in Ed initiative. The court prevented it from going to the ballot on the grounds that its description was so misleading as to have been unfair to those being asked to sign.

Rather than blame their own negligent draftsmanship, some in the movement concocted a conspiracy theory to explain the initiative’s demise. The Legislature passed a bill expanding the court. Gov. Doug Ducey stacked the court with judicial cronies who did his bidding by keeping the initiative off the ballot.

Now, I’ve written highly critically of many state Supreme Court decisions. But this is an Alice-in-Wonderland view of how the court works. There are no cronies on the court. There are highly intelligent and skilled lawyers rendering independent judgments as best they can.

They are sometimes wrong. I’d say even frequently wrong. But never unconscientious.

Even with the conspiracy theory, however, Bolick and Pelander are unlikely targets. Neither of them is an expansion justice. They would have been on the court even if the bill had never been passed. Pelander wasn’t even appointed by Ducey.

As it turns out, both Bolick and Pelander joined the decision to strike the initiative from the ballot. But that wasn’t known at the time the anti-retention effort was launched.

School choice opponents have reason to regard Bolick as unfriendly to their legal positions. Prior to his appointment, he was also a prolific litigator and school choice was an area of specialty. He chronicles his views and activities in his book, “Voucher Wars.”

But this wasn’t a school choice issue. And Pelander has no such defined profile on education issues.

This time the effort is low-grade. So long as retention elections exist, one day there will be a high-grade one.

This effort comes from the left. But in 2006, there was discussion of a retention fight among social conservatives if the justices tossed a gay marriage ban off the ballot, which they didn’t. And this election, the Arizona Free Enterprise Club, a free-market political organization, is recommending a no vote on several judges.

I’ve long argued that Arizona should scrap the current system for appointing judges and substitute the federal model: nomination by the governor and confirmation by the state Senate. With one exception: the appointment wouldn’t be lifetime but for a set term, subject to renomination and reconfirmation.

The term should be long enough to attract quality candidates and create space for independent judgment. For appellate judges, say a term of eight to twelve years.

That would be a far more effective check on the judiciary than the current system of retention elections. And far less dangerous.

Think of how ugly the political ads are in the U.S. Senate race. Think of how corrosive an effect interjecting that into our judiciary would have.