Merit Selection

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In Arizona, judges on the state level and in our two most populous counties are not elected; they are chosen by a commission. Find out about the history and pros and cons of the system from Maricopa County Judicial Nominating Commissioner Doug Cole and attorney Len Munsil.

Ted Simons: Since 1974, many judges in Arizona have been picked by a system called Merit Selection. It's a system that is envied by many other states. But the process is not without its critics. We'll hear from both sides on the issue, but first, Mike Sauceda tells us more about Merit Selection of judges.

Mike Sauceda: Before 1974, judges in Arizona were elected. But voters of Arizona changed the Constitution that year to a Merit Selection system for statewide judges and superior judges in Maricopa and Pima Counties. Former legislature, Pete Dunn, explains why the system was changed.

Pete Dunn: I think there was a recognition that there was a danger of the -- really corrupting influence of campaign contributions on judicial elections. Campaign contributions are fine for legislators and candidates for governor, but I think you want your judges to be impartial referees and not dependent on contributions from political parties.

Mike Sauceda: Superior court judges in smaller counties are still selected by election.

Pete Dunn: That was really a compromise but it was felt that in the smaller counties voters would know their judicial candidates, whereas, when you get into a county the size of Pima or Maricopa, you really can't know the candidates for judicial office.

Mike Sauceda: When a vacancy occurs, potential judges are nominated by one of three nominating commissions. One of which handles Supreme Court and State Appellate judges and two others that nominate Superior Court judges in Pima and Maricopa Counties.

Pete Dunn: The nominating commission interviews the candidates and sends three to five names to the Governor and both political parties have to be represented in those names and then the Governor chooses the judge from those people that have been submitted to the Governor.

Mike Sauceda: Unlike the federal system, the judges are not confirmed by the senate but the 15 members on each commission are, five of whom are lawyers.

Pete Dunn: They are nominated by, in some cases the Governor and in some cases by the Board of Supervisors and confirmed by the State Senate. They are Bipartisan they are approximately equal number of Democrats and Republicans. Diversity; the 1992 amendment, diversity was encouraged and there's a great deal of diversity on those commissions.

Mike Sauceda: In 1992, changes were made to Merit Selection.

Pete Dunn: There was a change to make the nominating commissions larger and to ensure that they were Bipartisan and that there were more non-lawyers than lawyer on the nominating commissions.

Mike Sauceda: The 1992 changes also required a periodic review of the judge's performance resulting in the judicial performance review; which surveys those involved in the court process, and makes recommendations on whether judges should be retained or not in upcoming elections.

Pete Dunn: Only two have been defeated since merit started but the unknown fact is that several judges have, when faced with bad J.P.R. scores, have chosen not to run. They've retired or resigned, so that number two is a little bit misleading.

Mike Sauceda: In the smaller counties, judges still run for office. Such as in the recent Pinal County election that resulted in Democrat, Brenda Oldham, beating Republican, April Elliot. Both talked about what it took to run for office.

Brenda Oldham: It's a grilling experience. It takes a lot of energy; it takes a lot of time. But it's also a really great experience because I am a people person. I love to talk to people. And I love getting out there and talking to members of my community.

April Elliot: If you want to keep this job, I mean, you have to get out there and campaign. That's an advantage my opponent has in that she's not required to be here Monday through Friday, 8:00 to 5:00 to serve the public, she can be out there doing it.

Mike Sauceda: Oldham talked about possible conflicts of interest resulting from having to get campaign donations.

Brenda Oldham: We've hit upon one of the difficulties in running for Judicial Office is the finance end of it. You have to avoid the impropriety of having any unethical issues and situations coming up.

Ted Simons: With me now to talk about the issue of Judicial Merit selection is Doug Cole, a member of the Maricopa County Judicial Nominating Commission, one of three commissions that nominate judges. Also here is Len Munsil, who has concerns about the system. Len is the founding president of the Center for Arizona Policy, a conservative think tank. He also was a gubernatorial candidate in 2006. Thank you both for joining us on "Horizon."

Doug Cole: Thank you.

Len Munsil: Thanks, Ted.

Ted Simons: Len, what is wrong with Merit Selection of judges?

Len Munsil: I think the main issue that many people have with Merit Selection is that the process itself is not really visible to the public. You have decisions on one of the coequal branches of government and a lot of made not only behind closed doors but they are made in a circumstance where you have an inordinate influence of lawyers and existing judges on the process of how judges are selected and so it's a fairly far removed in the minds of the public of what kind of judges they're getting and why.

Doug Cole: My response to that is your setup piece pointed out the commissions were expanded in the early '90s and now we have 10 public members, here in Maricopa County, that's 2 from each supervisorial district. I represent district 1 and neither of those two commissioners can be of the same political party; I'm a Republican and my seatmate is an Independent. So we're the public voice, we're the public eyes in this whole process. And I can tell you, in the eight years I've been on the commission, we have -- we now have a website, the process is a lot more open, we're very careful what happens in session and all votes are taken in public and I'm a big advocate for continuing to open up the process because this is the people's process.

Ted Simons: The process, a lot more open; do you agree or do you think it could be more open?

Len Munsil: I think it's moving in the right direction and certainly, there are a lot of great people who give up a lot of time to go through the process of trying to evaluate candidates for judgeships, but there's a lot more that can be done and I've talked to a number of people who served on the commission in the last decade whose experience is that the influence of the attorneys on the commission, and in the past -- I don't think it's the case now -- but in the past, there have been justices, even the chief justice of the Supreme Court weighing in and lobbying and working to get certain candidates in place and that carries a lot of weight with the citizen members.

Doug Cole: That's not happening now. The Maricopa commission is chaired by Justice Michael Ryan, he acts more as an ex-officio chairman of the commission. He doesn't vote unless there's a tie. He's a big stickler on everything being done in the open. I think the commissions, because of outside groups now have put more of a focus on them, I think they're more visible and there's a higher understand in the public on how judges are selected here in and in Pima County.

Ted Simons: Is this a solution in search of a problem? Are things bad enough right now to where they need this kind of reform?

Len Munsil: I think there are many people who, like me, feel like over the last 30 or 40 years in the country, both the federal judiciary and at times the state judiciary have been used by activist judges who really are political ideologues, serving in positions of authority that don't like the decisions reached by the people's representatives and have decide they're going to overturn them not based on the Constitution or the law but based on their own personal desire of what they think the outcome should be. And those of us that have those types of concerns would like to see a process that's more open and in the light of day, people understand what are the judicial philosophies being presented, that are coming forth.

Ted Simons: Judicial activism seems to be at the bottom of this in a variety of ways. How do you see this?

Doug Cole: It depends upon what side of the fence you're sitting on. There's Judicial Activism you like and there's Judicial Activism that you don't like depends on your persuasion. We have a process here, and going back to the judicial performance review and every judge is rated and every citizen that votes for retention on the judges gets this in the mail. And I'm not -- haven't done a political science drill-down on various votes, but you can see, Ted, a correlation between low-rated judges in the amount of public votes they get in retention.

Len Munsil: I've heard the argument it depends on which side of the fence you're on, on judicial activism and I've heard this argument since the 1980s, the Judicial Activism has all been on the Liberal side. Overturning Conservative decisions made by legislative bodies. I challenge anyone to point me to examples of Conservative Judicial Activism. A court, for example, in Arizona saying we believe so strongly in Arizona's Constitutional Provision on gun ownership that every citizen must carry a gun now; we're mandating that. That's a Constitutional requirement, that would be Conservative Judicial Activism, but that's not what is occurring. And on issue after issue where you have an ideological, Liberal ideological bent, we've seen courts advance the Liberal agenda and overturn the will of the people really without any warrant or any basis in the Constitution.

Ted Simons: At the core of what I'm hearing here is -- am I hearing a distress of the judiciary?

Len Munsil: Well, here's the thing; our system of government is based on a separation of powers and that requires accountability between the various branches of the government. I distrust government at every level if you put too much power in the hands of any one branch and when you set up the court with no accountability for judges that are in place and they have the ultimate deciding factor on every policy decision put before the people, then you're giving them authority that lends itself to abuse.

Doug Cole: Ted, the system that we have here in place is a model for the country. We meet very often in Maricopa County because we have 95 divisions. There's 95 superior court judges here in Maricopa County; down in Pima County I think there's 23. So we're busy. We meet a lot and we have folks that visit regularly from all over the country and world. We had a Japanese delegation come in. We are looked to as a model; can it be improved? Yes and we have improved in very substantial ways since my tenure on the commission. Some of the items I mentioned earlier from web-based information now is available to the public and we -- we advertise we now see articles in the newspaper, which we didn't see in the past, that there are openings. But a big challenge here is getting people to apply. It truly has been a problem for the commission. Part of a commissioner, we're supposed to go out and help recruit candidates and we have two openings right now on Maricopa County Superior Court, we only had 45 applicants.

Ted Simons: I want to wrap it up quickly, but I know you like the federal model.

Len Munsil: Right.

Ted Simons: Talk about that and how that would apply in Arizona.

Len Munsil: Our founding fathers had a lot of wisdom, I think, when they said that the Executive Branch, the President appoints judges, the senate confirms them, that way you hold the political branches that are running for office accountable for the decisions they make and the kinds of judges they appoint. I'd like to see Arizona move in a direction of gubernatorial appointment, senate conformation because again, I think that brings into the light of day, when you have candidates for governor and state senate, the issue of what kind of judges we have is going to be an issue discussed politically. And I just want to say one more thing about accountability. We haven't had a single judge voted out on the retention elections in the last 30 years. Now, I've been voting in Arizona since 1982, I've never been part of an election where a judge was voted out. C.E.O.s lose their jobs, incumbent, President's incumbent congressmen lose their jobs every election; but we've never had a bad judge in Arizona.

Ted Simons: Quickly, that doesn't sound like accountability, does it?

Doug Cole: But we have retention elections under the federal model, they're appointed for life.

Ted Simons: uh-hmm.

Doug Cole: So where --

Ted Simons: You would not go for that.

Len Munsil: I would argue that Arizona has a great history going back to statehood of fighting for the right of citizens to have direct involvement in judges. We fought a battle in state hood over whether we could recall judges and Arizona has a long heritage of that, so I think it's a good thing.

Ted Simons: Okay, we're going to have to recall me if I don't stop the discussion right now because we are running out of time. Thank you for the discussion; great discussion and thank you so much for joining us. We have a couple of websites we've shown throughout the interview for the judicial nominating committee and judicial performance review. There they are. For more information on what we have just discussed there's a phone number and there's a website. So go to it. Thanks, guys.

Doug Cole and Len Munsil: Thank you.

Ted Simons: We'll look at why Maricopa County Sheriff Joe Arpaio is making headlines this week; including his new way to handle incarcerated undocumented migrants. That's coming up Friday on the Journalist's Roundtable on "Horizon". That is it for now. I'm Ted Simons. Thanks so much for joining us; you have a great evening.

Operator: "Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Operator: The "Horizon" segment on selecting judges is sponsored by the League of Women Voters, a non partisan political organization which encourages informed and active participation in government.

Doug Cole:Maricopa County Judicial Nominating Commission;Len Munsil:Founding President,Center for Arizona Policy

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