A ballot measure that a senator says would politicize the state’s judicial system has lost bipartisan support and might not be heard in committee in time to get it to the House floor.

Sen. Bill Brotherton, D-14, says he has convinced his fellow Democrats to withdraw their support of SCR1038, which calls for a statewide vote on whether the Senate should have the authority to reject a governor’s appointments to trial and appellate courts.

There is not a problem with activist judges in Arizona, Mr. Brotherton said, but the measure’s conservative backers have sought bipartisan support to enhance the chances of voter approval.

“They don’t want to make it look like a right-wing power grab on the courts,” said Mr. Brotherton, a lawyer. “I successfully peeled off everybody on the Democrat side in the Senate.” He submitted a floor amendment to require a two-thirds vote of the Senate to reject a judicial appointment, but it was not adopted.

The resolution, sponsored by Sen. Jay Tibshraeny, R-21, passed the Senate 17-12 on March 28, with 11 Democrats and one Republican voting against it. It was referred to the House Judiciary Committee, but was not on the committee’s agenda for its last scheduled meeting March 31.

House Speaker Jim Weiers, however, gave committee chairmen an extension to April 4 for holding final hearings. It was not known at press time whether SCR1038 would be heard then.

Specifically, the resolution reads that a gubernatorial appointment of a judge or justice is “subject to Senate confirmation. The Senate may reject an appointment. If the Senate does not reject an appointment by a majority vote of its members within 60 days after appointment by the governor, that appointee shall take office as if the appointee had been confirmed.”

The Senate president or a majority of senators may call a special session at any time to consider a judicial appointment.

After Jan. 1, 2007, the resolution also increases the terms of Supreme Court justices and appellate judges to 10 years from six and Superior Court judges to six years from four.

Mr. Tibshraeny said he heard his measure was losing support of judges.

“We thought a deal was struck,” he said. “We’re getting half-hearted support.”

Under a compromise endorsed by groups representing judges, a governor’s judicial appointee to the statewide appellate courts and the superior courts in Maricopa and Pima counties would take office unless the Senate rejects the appointment within 60 days. An earlier version of the measure called for Senate confirmation of the judicial appointments.

The compromise, which retains merit selection of judges, was endorsed by the state Judicial Council, the Arizona Judges Association and the State Bar of Arizona. It includes longer terms for judges between judicial elections.

Related to the compromise, Senate Judiciary Committee Chairman John Huppenthal, R-20, agreed to hold HCR 2057, a proposed referendum to designate the chairman of the Senate Judiciary Committee as chairman of the three judicial nominating commissions. It had passed the House 32-27 on mostly a party-line vote.

One Group Says Merit System ‘Lacks Checks And Balances

One of main supporters of SCR1038 is the Center for Arizona Policy (CAP), a lobby organization that has complained about court rulings on abortion and school finance and calls for more say from the public and elected officials on who serves on the courts.

“There’s growing concern that the merit selection process lacks checks and balances,” said CAP lobbyist Cathi Herrod. “Merit selection is controlled by the State Bar and the judges. The Legislature has only a nominal role.”

She said judges “willingly endorsed the [compromise], but for some unknown reasons, it got sidetracked in the Senate. I don’t believe this is over [this session].”

Mr. Tibshraeny said he was “frustrated” that his measure has stalled.

“We may not do it this year, but we’ll come back next year with a partisan draft,” he said.

Merit System Approved By Voters In 2 Counties In 1974

Voters amended the state Constitution in 1974 to create a merit selection and retention system for Superior Court and appellate judges in Maricopa and Pima counties. Judges in 13 rural counties are still elected.

Judicial nominating commissions, members of which are nominated by the governor and confirmed by the Senate, study applicants for the bench, and then forward three nominations to the governor, who makes the final selection.

“Merit selection has worked well,” Governor Napolitano said. “We have the best state court system, judge for judge, of any state in the country. Under Republican governors and Democratic governors, we’ve been able to keep partisanship out of it and really look at the merits of judicial applicants.

“My fear with the Senate look is we don’t want to duplicate what they do at the federal congressional level — we see what that leads to: excessive partisanship on both sides. If it’s not broke, don’t fix it.”

Ms. Napolitano added that the process for judicial retention elections might need some “tweaking.”

In 1978, voters did not retain two judges. —