Progressives declared open season on Arizona judges. We should've seen this coming

Abe Kwok, Arizona Republic
Updated ·5 min read
24

The ouster of three Maricopa County judges in the 2022 election shook the legal community to the core.

The rest of us, however, were slow to catch on that it wasn’t an isolated moment but rather a movement to target judges at the ballot box.

One that’s now in full swing.

Progress Arizona in late April launched a campaign to remove Arizona Supreme Court Justices Clint Bolick and Kathryn King, the two conservatives on the November ballot who were part of the majority opinion upholding the state’s 1864 near-total abortion ban.

The political action group supports progressive causes, including a citizen-led initiative that would expand abortion rights established by Roe v. Wade which the U.S. Supreme Court overturned in 2022.

2 groups target judges over abortion ruling

Progress Arizona had previously condemned Democratic state lawmaker Lydia Hernandez for voting on a GOP abortion-related bill and hailed partner groups’ condemnation of Democrat-turned-independent U.S. Sen. Kyrsten Sinema for seeking compromise on abortion access in the military.

Progress Arizona isn’t the only one targeting judges.

A more influential player may be Civic Engagement Beyond Voting, whose primary mission is to teach folks how to persuade lawmakers in state and local government.

A day after the court’s abortion ruling, it issued a rallying cry on social media: “Remember the AZ justices who sent us back to 1864: Clint Block and Kathryn King are on your ballot in 2024.”

The group publishes “Gavel Watch,” a guide to judges, and accompanying a list of voting recommendations.

In 2022, it advised supporters to reject six judges — among them the three Maricopa County Superior Court judges who ended up getting the boot.

It's not based on performance or conduct

Civic Engagement Beyond Voting targeted one of the ousted judges, Rusty Crandell, primarily because of his “embrace of the ideologically right-wing Federalist Society” and his previous work as a prosecutor in the “federalism unit” in former Arizona Attorney General Mark Brnovich’s administration.

Similarity, the group urged a “no” vote on appellate court Judge Cynthia Bailey over her Federalist Society ideology, which CEBV rejects as “antithetical to the concept of an impartial, independent judiciary.”

That and the fact her husband served as interim U.S. Attorney for Arizona and had “unflinchingly enforced" President Donald Trump’s harsh immigration policies.

Another view: Informing voters is not 'open season' on judges

Bailey retained her position.

CEBV also objected to Supreme Court Justice Bill Montgomery, citing his anti-LGBTQ+ stances and opposition to adoption support services for same-sex couples when he was Maricopa County attorney, as well as the turmoil in the office over unethical behavior by a high-profile prosecutor.

Montgomery survived his retention election but ended up under water in votes cast in Maricopa County, where CEBV exerts the greatest influence.

2022 election results alarmed judges

The seismic impact of the 2022 election alarmed the legal community, including the Arizona Judges Association, which has more than 300 judges and commissioners among its membership.

Until 2022, only three judges had been removed since Arizona's merit system began in 1978 — two of them in that first year.

The association decided to act. It is the architect of Senate Concurrent Resolution 1044, which asks voters to eliminate retention elections for judges appointed under the state’s merit system except in limited circumstances.

Most pertinent would be a negative recommendation by the Commission on Judicial Performance Review (JPR), an independent body of judges, attorneys and citizen members that evaluates judges who are up for retention.

Democratic lawmakers have shunned Senate Concurrent Resolution 1044; not a single one has voted for it even as the legislation cleared the Senate and is awaiting action in the House.

No Republican, meanwhile, has voted against it.

Liberals misinterpret Sandra Day O'Connor

Critics slam a provision that would nullify all judges retention results in the Nov. 5 election should voters approve the initiative.

That is, it would make safe each and every judge facing election this year, regardless of whether the individual was retained or booted.

(I continue to argue that supporters should rid the retroactivity clause to eliminate the misconception that the initiative was crafted to protect Justices Bolick and King. Critics’ stronger argument is that the proposal establishes de facto lifetime judicial appointments.)

Civic Engagement Beyond Voting co-founder Catherine Sigmon, among other progressives, invokes the late Sandra Day O’Connor in opposing reforms, citing O’Connor’s ardent support of Arizona’s merit selection system.

But that framing lacks context.

Let's tone down the drama: About election threats

O’Connor defended Arizona’s system as superior to pure judicial elections because it provides checks and balances.

Namely, “a sharing of responsibility” between:

  • a commission that vets judicial candidates for appointment;

  • a commission for evaluation (the JPR), weighing surveys and comments regarding a judge’s legal ability, integrity, communication, temperament and the like;

  • the governor;

  • and Arizona voters in retention elections.

Retention election is far from perfect

But she cautioned that merit selection can, too, be an imperfect system.

“(T)here is the possibility,” O’Connor observed in a co-written essay, “even in a merit selection process, that a nominating commission will become politicized, that a governor will not act in good faith to select the best possible candidate, or that a retention election will be infected with issue-based politics.” (The emphasis is mine.)

Civic Engagement Beyond Voting does strong, important work to promote political engagement and train people on ways to “persuade and activate.”

But as it acknowledges, “We are nonpartisan but we are not neutral.”

Not at all. Its politics are decidedly progressive and its weapon of choice at present is abortion.

The very infection of “issue-based politics” that O’Connor contemplated in retention elections.

Reach Abe Kwok at akwok@azcentral.com. On X, formerly Twitter: @abekwok.

This article originally appeared on Arizona Republic: Progressives are targeting Arizona judges over ideology