Ducey’s historic role with high court
Next appointment could solidify impact for years
When Gov. Doug Ducey makes his next state Supreme Court appointment this spring, he will have selected more justices than any Arizona governor before him.
His handpicked majority could endure for years, and fill nearly all seven seats on the court with conservatives.
But the latest appointment comes as Arizona voters and politicians alike have raised doubts about the court’s independence from the executive branch.
Two years ago, Ducey faced accusations of packing the court by expanding the number of seats on the bench. Last year, the governor’s staff appeared to have advance knowledge of a major court decision, and one justice lobbied Ducey on his pick for a vacant U.S. Senate seat.
With his next appointment — and
possibly another later this year — Ducey has a chance to dispel the perception that he is too cozy with the court or reinforce it, according to Douglas Keith, who specializes in fair and diverse courts at the Brennan Center for Justice.
“State supreme courts can be the final word on matters of incredible importance, from education to reproductive rights to gerrymandering,” Keith said.
“If we’re entering a point where the public thinks the court is really no different than another political branch, or that it may be wholly aligned with the governor of the state, that’s problematic.”
Ducey seeks ‘constitutional conservatives’ and ‘textualists’
In a recent interview with Republic, Ducey called appointing justices “one of the most important responsibilities any governor has.”
“It’s something I’ve taken very seriously,” he said. “I’m always trying to find someone — as someone who believes in the separation of powers — that doesn’t want to be governor and doesn’t want to be a legislator, they want to be a justice.”
Though Ducey says he has no particular litmus test for prospective judges on issues such as reproductive rights, he clearly prefers a certain judicial approach.
He has said more than once that he aims to appoint “constitutional conservatives,” who support small government and individual rights, and “textualists,” who interpret laws based on their literal meaning.
Ducey’s first pick for the court, Clint Bolick, told reporters at the time of his 2016 appointment that “when judges stray from the text of the Constitution and supplant their own ideas ... they’re amending the Constitution,” which is “beyond the scope of proper judicial action.”
Bolick also has been called “one of the nation’s most prominent libertarian legal activists” for his work defending individual rights.
He co-founded the Institute for Justice in Washington, D.C., to stop what he viewed as government overstepping its bounds; held a senior position at the Goldwater Institute, which also advocates for limited government; and has defended causes including parents’ ability to put public money toward private-school tuition.
Still, the legal community generally views Bolick — who is not registered with either party — as an independent thinker who didn’t much change the makeup of the court when he replaced Republican Justice Rebecca White Berch.
Ducey’s next two appointments, Andrew Gould and John Lopez, are a different story.
‘No one left on the court who is liberal’
The governor added Gould, an Appellate Court judge, and Lopez, a former solicitor general, to the court in 2016. Their appointments were part of a Legislature-backed court expansion that increased the number of justices from five to seven.
Both Gould and Lopez are registered Republicans. Ducey said at the time that he believed they would “apply the statutes and constitution as written” and “follow the rule of law.”
“Two more conservative people on a court that is already leaning conservative is a lot,” said Paul Bender, a constitutional-law expert and professor at Arizona State University.
“I don’t know that we can say yet whether those people have pushed the court in one direction or another. But I can say the diversity on the court is rapidly expiring, because there’s really no one left on the court who is liberal.”
Chief Justice Scott Bales, the only Democratic justice, was previously a registered Republican. Court observers have described him as “very moderate.”
Justice John Pelander already has announced he will retire in March; if Bales also retires this year as many expect, that would give the governor two appointment opportunities in 2019.
Bender said Ducey “should be very careful to not put any political stamp on the court,” calling its history as a politically neutral body “precarious.”
“The court so far has not really been one that you could say is conservative or liberal, because they typically don’t split into blocs like you see on the U.S. Supreme Court,” he said. “They try to take cases individually.”
When Ducey talks about constitutional conservatives and textualists, “that’s just another way of saying he wants political conservatives,” Bender said. “If he ultimately appoints five people from the same political philosophy, he’ll have made it into a conservative court, and that would be a bad idea.”
Courts should be able to ‘put politics aside’
Experts say a partisan bent could be problematic because it has the potential to affect both the court’s internal decision-making process and the public’s trust in those decisions.
If all justices think alike, they say, they could miss out on discussions and disagreements that would help them see cases in another light. And if they routinely lean one way, the public could stop viewing them as impartial.
“Our democracy is built on this promise to the public that courts are going to be somehow different than other branches of government,” said Keith, the fair-courts expert. “They’re supposed to be structured so they can put politics aside in the way the other branches can’t.”
Arizona Supreme Court spokesman Aaron Nash said most of the court’s justices sharing political perspectives shouldn’t be an issue, as long as justices “look at each individual case on its facts and apply the law to it” rather than making decisions “based on a preference of how they want the case to go.”
But he acknowledged that appearances do matter.
“Public trust and confidence in the courts is vital to being able to do our work,” he said. “It’s not like the justices are stepping off the bench and going out and enforcing their orders, so it’s important that people not only receive fair treatment, but that they feel they received fair treatment.”
A court ruling raises concerns
Some Arizonans, particularly those unsatisfied with Ducey’s commitment to public-education funding, already view the state Supreme Court as too political.
Last fall, some teachers mounted a campaign against Ducey and Bolick — who were both on the ballot — after the contentious defeat of an education income-tax measure.
Backers of the #InvestInEd initiative, also known as Proposition 207, had billed the effort as the fastest way to fully restore more than $1 billion in cuts made to education funding since the recession.
But the Supreme Court voted 5-2 to remove it from the Nov. 6 ballot, saying a description crafted by the measure’s campaign “did not accurately represent the increased tax burden on the affected classes of taxpayers.”
The opinion raised questions about the independence of Arizona’s judicial branch, with #InvestInEd backers contending the governor had stacked the court. All three of the governor’s appointees had voted to kill the measure, with support from justices Pelander and Robert Brutinel.
#InvestInEd supporters’ anger intensified after 12News reporter Brahm Resnik said Ducey’s re-election campaign had shared the 5-2 breakdown with him before the ruling was publicly available.
The tip was apparently meant to show that Ducey’s three appointees couldn’t have sunk the measure on their own. Instead, the flap fed the idea that the governor’s staff was communicating with the court behind the scenes.
A Ducey campaign spokesman at the time said he’d simply passed along a rumor he’d heard about the vote breakdown and had “no idea” if it was true. He said the rumor had not come from anyone on the court.
A court spokesman said an internal inquiry found no evidence of the justices disclosing the tally before the opinion was released. But the damage was done, particularly after a photo emerged showing Bolick sitting at a table next to Ducey’s budget director at an Arizona Chamber of Commerce gala, held the day after court voted on #InvestInEd.
The chamber had established Arizonans for Great Schools and a Strong Economy, the committee that filed the lawsuit challenging the #InvestInEd measure.
Justice texts: ‘Governor, a heads-up’
The public-perception woes continued three months later, when the Phoenix New Times published a text exchange between Ducey and Bolick.
In the August messages, sent two days after after U.S. Sen. John McCain died, Bolick urged Ducey to appoint Maricopa County Attorney Bill Montgomery to McCain’s seat.
He said Montgomery was “respected by everyone, supported by all parts of the GOP, yet unfailingly conservative,” adding that he was “young enough to be there (on the court) for a long time.”
At 51 years old, Montgomery could serve on the court for nearly two decades.
Bolick also wished Ducey luck on his re-election campaign. In response, Ducey told Bolick that he valued his advice and called Montgomery “one of our finest.”
Montgomery has since applied to replace Pelander on the Supreme Court.
It was not the first time Bolick had texted Ducey appointment advice, according to the New Times report: He had recommended Republican Chris DeRose for a Maricopa County Superior Court clerk opening.
Ducey, who says he receives a flood of suggestions whenever a “major position” is open, appointed DeRose on an interim basis.
Records obtained by The Republic show that the day the New Times story ran, Bolick texted Ducey a warning that their communications might be published.
“Governor, a heads-up,” the message said. “(Name redacted) issued a public records request for any exchanges between justices and you or members of your staff or campaign team between January and September, so I had to produce text messages during that period. Clint.”
Public records indicated that Ducey did not respond to the text message.
Some safeguards when selecting justices
When picking someone for the state Supreme Court, Arizona governors don’t have complete autonomy. The state’s merit-selection system includes a handful of safeguards.
First: a bipartisan nominating committee that includes Democrats and Republicans, lawyers and non-lawyers, and representatives from various Arizona counties.
The Arizona Commission on Appellate Court Appointments publicly vets and interviews Supreme Court applicants before submitting a short list of at least three names to the governor. And no more than two-thirds of candidates on the list can come from the same political party.
It is, of course, exceedingly rare for a governor to appoint a justice from outside of his or her own party. Experts said it’s “natural” for Republicans and Democrats alike to “pick for political purposes.”
But because the governor must choose from the commission’s list, the group can limit the impact of the governor’s appointments on the court’s composition.
Ducey told The Republic he has been pleased with the commission’s work so far, saying it “has been very fair in giving me a broad range of qualified, talented attorneys from which to select.”
Arizona justices also appear on the ballot two years after appointment and every six years thereafter, giving voters a chance to remove a judge they feel isn’t doing a fair job.
Arizonans have kicked almost no one off the bench so far. But voters in Iowa, Colorado and Florida have set a precedent for doing so — or attempting to — when they felt the courts shifted too far in one direction, according to Bill Raftery, an analyst with the National Center for State Courts.
Finally, Arizona only allows its state Supreme Court justices to serve until age 70 — not indefinitely, as U.S. Supreme Court justices can. None of the justices Ducey has appointed so far will reach that age during the governor’s second term.
“It would be good if Ducey tried to make sure the next two appointments were people not committed to any particular philosophy. At least one should be someone who people would think of as liberal in order to maintain that balance,” said Bender, the constitutional law scholar.
“But the good thing is, if he doesn’t, it’s not going to last forever. We’ll see what happens.”