Arizona has been a pioneer in judicial reform, particularly through the implementation of Merit Selection and Judicial Performance Review processes. These processes aim to ensure the selection and retention of qualified judges based on merit and performance rather than partisan politics.
Overview
Arizonans for an Independent Judiciary is pleased to provide the following background and historical information to Arizona voters regarding judicial selection and retention.
Court of Appeals Judges and Supreme Court Justices
Superior Court Judges
The Arizona’s Court of Appeals judges and Supreme Court justices are appointed by the governor from a slate of candidates carefully vetted and selected by the Arizona Commission on Appellate Court Appointments. These judges and justices are up for retention election for the first time after two years in office, and every six years thereafter.
Every Arizona county has at least one Superior Court judge. 11 of Arizona’s counties elect their Superior Court judges every four years. Superior Court judges in the remaining counties — Coconino, Maricopa, Pima, Pinal — are appointed by the governor from slates of candidates carefully vetted and selective by commissions on superior court appointments in each county. These judges are up for retention election for the first time after two years in office, and every four years thereafter.
History
When our country was founded, states generally appointed judges through the executive and/or legislative branches. In the 1800s, states experimented with electing judges through partisan or nonpartisan elections. And in the early 1900s, a new process for selecting judges, called “merit selection,” was developed. Under a typical merit selection plan, an independent commission of citizens recommends candidates who would be suitable for judicial positions. From this pool, the state governor appoints a judge. After some period of time, a retention election is held in which the voters get an up-or-down vote as to whether a judge should remain on the bench. Generally, merit selection plans are designed to:
- Balance judicial accountability and independence;
- Provide for the selection of highly qualified judges, who would be fair and impartial arbiters of the law; and
- Increase bipartisanship in the judicial selection and retention process.
Arizona’s Adoption of Judicial Performance Review (“JPR”) System – the 1992 Amendment to the Arizona Constitution
The history of Merit Selection and Judicial Performance Review in Arizona reflects a commitment to a fair, impartial, and accountable judiciary. These amendments share responsibility between a commission for appointment, a commission for evaluation, the governor of the state, and the people in retention elections, utilizing checks and balances. Additionally, Arizona continues to ensure bipartisanship and diversity. These systems have become integral to Arizona’s legal framework, aiming to ensure that judges are selected and retained based on merit and performance rather than partisan considerations.
Summary
Arizona’s Merit Selection System – the 1974 Amendment
In 1992, Arizona passed a constitutional amendment which implemented a comprehensive system for review of merit-selected judges. This system is called Judicial Performance Review (“JPR”).
A commission on JPR appointed by the Supreme Court of Arizona, and consisting of lawyers, judges, and other citizens, develops nonpartisan performance standards and thresholds for judges, and conducts performance reviews.
The commission surveys opinions of persons who have knowledge of the judges’ performance (e.g., jurors, attorneys, litigants, witnesses, court staff) and provides opportunities for the public to participate through public input and written comments. Judges are evaluated in categories such as legal ability, integrity, temperament, and administrative performance.
After the commission evaluates judicial performance on behalf of the voters, including whether the commission found that the judge “meets” or “does not meet” the judicial performance standards for retention, it distributes its evaluation results throughout the state for voters to use when making their decisions in retention elections.
In addition to JPR, the 1992 Amendment made other changes to Arizona’s merit-selection system, including:
- Changing the membership on all commissions from three to five lawyers and from five to ten lay persons.
- Requiring the commissions to take public testimony and to conduct more of their business in public sessions, including the commission vote on selecting candidates to send to the governor.
- Requiring consideration of the diversity of the state or county’s population in selecting commission members and nominating judicial candidates for the governor’s deliberation.
- Raising the population threshold of merit population from 150,000 to 250,000.
From 1912 to 1974, Arizona elected judges for limited terms. Vacancies in judicial offices were filled by gubernatorial appointment until the following general election.
Arizona’s consideration of merit selection began in 1959, leading to proposed legislative bills in 1971 (led by Sandra Day O’Connor before President Reagan appointed her to the United States Supreme Court) and 1973. Ultimately, in 1974, Arizona adopted merit selection through an amendment to Arizona’s constitution approved by the voters.
The 1974 law provided for the merit selection of all appellate judges and superior court judges in counties with populations over 150,000. The measure called for the immediate creation of three nominating commissions: one appellate court nominating commission and one superior court nominating commission apiece for Maricopa and Pima counties, the only two counties then having populations over 150,000. Public members made up the majority of the judicial nominating commissions. Each of the commissions consisted of five non-lawyer members and three attorney members.
This process was designed from the outset to be nonpartisan or, at least, bipartisan — no more than three of the non-lawyer members and two of the lawyer members were permitted to be from the same political party. For the appellate nominating commission, no more than two non-lawyer and two lawyer members could be from the same county. The commission would review applicants, conduct interviews, and nominate at least three qualified candidates for each judicial vacancy. Again, the candidate list reflects bipartisan aims as no more than 60 percent of the nominees could be from the same political party. The Governor would then select judges from the candidates list.
To remain on the bench, the judge submits to a retention election.