Judges and Politics Don’t Mix
Last year, the Institute for Legal Reform of the U.S. Chamber of Commerce — a group that’s not exactly known for radical, left-wing politics — endorsed Arizona’s system of selecting judges, saying that “Arizona leads the nation with the procedures it has put in place to fulfill the promise of true nonpartisan ‘merit’ selection” of judges. Arizona state senator Jack Harper evidently disagrees. He has put forward a proposal to scrap the current system and replace it with one in which the governor and senate could pick judges based on partisan political loyalty, not their qualifications and experience.
Under Arizona’s current system, nonpartisan judicial nominating commissions review applications for vacant judgeships, and submit the three most qualified candidates to the governor. The governor, in turn, appoints one of the candidates. Later, voters have an up or down, yes-no vote to keep a judge or remove him or her from the bench, in an uncontested “retention” election.
Senator Harper condemns the current system, saying that it too often leads to the appointment of judges who are too “liberal, activist, and out of touch with the general society,” and that it is dominated by trial lawyers — even though only 5 of the 15 members of the commissions are lawyers. His conservative supporters argue that eliminating the nonpartisan nominating commissions, and putting control of the bench in the hands of partisans in the executive and legislative branches, is necessary to restore “checks and balances” to the judiciary.
It speaks volumes about Harper’s misguided proposal that the system he says is dominated by trial lawyers received a stamp of approval from the U.S. Chamber’s Institute for Legal Reform. The group isn’t usually confused with the plaintiffs’ bar — the Chamber, after all, is the world's largest business federation and represents more than 3 million businesses. And the Institute? Its specific goal is to “neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems.” When this group says that Arizona’s system isn’t too “liberal” or “out of touch with the general society” — indeed, when it says the system “leads the nation” — it raises serious questions about the motives of those, like Harper, who attack the system.
The Chamber, incidentally, is not alone in defending the existing system. Retired U.S. Supreme Court Justice Sandra Day O’Connor defends it, too. O’Connor was instrumental in establishing the current system back in 1974, when she was serving in the Arizona senate. She’s come out against Harper’s proposal, telling the judiciary committee that Arizona has “an excellent judiciary at present, and in my opinion it would be against the best interests of Arizona to increase the partisanship in the selection of its judges.”
O’Connor has it exactly right. To perform their constitutional duty, judges have to answer to the law and the constitution — not to political pressure. That’s exactly what Arizona’s system was designed to achieve. As the Institute put it, “[t]he original purpose of using a commission-based merit selection system was to reduce the politicization of the judicial system.”
Politics and courts just don’t mix. As O’Connor has explained elsewhere, “the legitimacy of the judicial branch rests entirely on its promise to be fair and impartial” and if the public loses faith in that — if the public believes that judges are “just politicians in robes” — there’s no reason to respect judge’s opinions any more than the “opinions of the real politicians representing the electorate.”
Across the country from Arizona, in South Carolina, there’s another fight going on to ensure that judges aren’t perceived as mere “politicians in robes.”
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