A higher-than-usual number of Democrats vying for a Supreme Court vacancy could give Gov. Jan Brewer a larger pool of finalists for the job than she or any other governor has had.
If all three Democrats who have moved onto the interview stage of the process make the list of finalists, then as many as four Republicans would join them under a state law requiring a political balance among the nominees. Scenarios also exist where a majority of Democrats make the list and are joined by either one or two Republicans,
No governor has ever had more than five nominees to choose from since the 1974 inception of the merit and retention system for selecting judges and justices. There have only been three nominees in 11 of the 14 times a new justice has been chosen.
“In recent history our hands have been tied because of the lack of Democrat or Independent applicants,” said Doug Cole, a member of the Commission on Appellate Court Appointments, and an ally of Brewer.
Brewer chose justices in 2009 and 2010. There were only two Democrats who applied in the first year and three in the second year. Only one made it to the interview in the first year and only two in the second year. Judge Diane Johnsen of the Court of Appeals was the only Democrat both years to make it as a finalist.
Four Democrats applied this year. The commission will interview three of them and six Republican applicants Aug. 20 to find a replacement for former Vice-Chief Justice Andrew Hurwitz, who was confirmed by the U.S. Senate to serve on the 9th U.S. Circuit Court of Appeals June 11.
The commission is required to send a slate of at least three nominees to the governor and no more than two can be from the same political party. If the pool of finalists is more than three, then only sixty percent of them can be from the same party.
The commission met July 31 and narrowed a list of 14 applicants to nine who will get an interview. The three Democrats who moved onto the next stage, Christina Cabanillas, Johnsen, and Judge Michael Brown of the Court of Appeals, each got high vote tallies from the commission at the July 31 meeting.
Cole said the quality of the Democrat applicants makes it “more than possible” to send a list of seven to Brewer. The higher number is in line with a provision in Proposition 115, which will be on the Nov. 6 ballot, that calls for a minimum of eight nominees.
Proposition 115 proposes several changes to the state’s merit and retention system of selecting judges. It abolishes the requirement of political balance in the slate of nominees, diminishes the State Bar of Arizona’s role in the process, increases terms for Superior Court judges from four to eight years and Supreme Court justices from six to eight years and raises the retirement age for appellate court judges and justices from 70 to 75.
Supporters of the measure hail the proposed increase in the number of nominees going to governor, but opponents don’t believe more nominees necessarily leads to qualified judges and opens the door for political rigging.
“Because the judiciary is the least directly accountable branch of government, it is essential that as many qualified individuals as possible be presented to the governor for consideration,” Brewer wrote in an argument submitted to the Secretary of State in favor of the measure.
Opponents of the measure generally say that unqualified finalists will end up on the larger list. Opponents include five former Supreme Court chief justices, 19 past presidents of the State Bar of Arizona, several legal associations, the Phoenix Law Enforcement Association, Save the Family, the Arizona Center for Law in the Public Interest and the Democratic Party.
Proponents who have filed arguments with the Secretary of State include the Center for Arizona Policy, the Arizona Judicial Council, the State Bar of Arizona and the Arizona Judges Association. The State Bar and Judges Association didn’t tout the increased number of finalists as a benefit of the measure in their written statements.
Barry Markson, president-elect of the Arizona Association of Defense Counsel, one of the measure’s opponents, has another reason for disliking the larger finalist list.
He said the typically smaller number of applicants for appellant positions coupled with the higher number of required nominees under the ballot measure increases the odds for a governor’s crony or financial benefactor to make a list of finalists and eventually be chosen without regard to merit.
“It gets us away from having really well qualified applicants sent up to the governor and more in the position where some unqualified or less qualified applicants will be sent up and that’s not a good thing for the judiciary,” Markson said.
The Commission on Appellate Court Appointments will interview the following applicants Aug. 20 to fill a vacancy on the Arizona Supreme Court:
Michael J. Brown, 47, a Democrat who has been a judge with the Arizona Court of Appeals since 2007. Brown is the son of former Rep. Jack Brown.
Christina M. Cabanillas, 46, a Democrat who is the Appellate Chief for the U.S. Attorney for Arizona.
Kent E. Cattani, 54, a Republican who is Chief Counsel of Criminal Appeals and Capital Litigation Division of the Arizona Attorney General’s Office.
John C. Gemmill, 63, a Republican who has been a judge with the Arizona Court of Appeals since 2001. Gemmill authored the opinion in Bailey v. City of Mesa, a case that gained national recognition and set the standard for what is deemed “public use” in Arizona eminent domain cases.
Philip L. Hall, 56, a Republican who has been a judge with the Arizona Court of Appeals since 2001.
Diane M. Johnsen, 59, a Democrat who has been a judge with the Arizona Court of Appeals since 2006. Johnsen was a finalist for Supreme Court vacancies in 2009 and 2010.
Douglas L. Rayes, 59, a Republican who has been a judge with Maricopa County Superior Court since 2000. Rayes is the Presiding Judge of the Criminal Department.
Ann A. Scott Timmer, 51, a Republican who has been a judge with the Arizona Court of Appeals since 2000. Timmer was a finalist for Supreme Court in 2005, 2009 and 2010.
Lawrence F. Winthrop, 60, a Republican who has been with the Arizona Court of Appeals since 2002. Winthrop has been the Chief Judge of the court since 2011.