Gov. Doug Ducey will have an unprecedented opportunity to stack the Arizona Supreme Court with his own appointments before his first term is halfway finished after signing legislation adding two new justices to the bench.
Ducey on Wednesday signed HB2537, which expands the state’s highest court to seven. The governor will make the appointments, which has led Democrats and other critics to decry the legislation as a “court-packing” bill.
In a signing statement, Ducey emphasized that many states with equal or smaller populations to Arizona have more than five justices. He further insisted that the expansion would make the court more efficient and allow it to increase its workload.
“Arizonans deserve swift justice from the judicial branch. Adding more voices will ensure that the court can increase efficiency, hear more cases and issue more opinions,” Ducey wrote.
Once Ducey has appointed the two new justices, he’ll have made three appointments before his second year as governor is over. His predecessor, Jan Brewer, didn’t make her third appointment until her fourth year in office. Janet Napolitano, who preceded Brewer, only appointed two Supreme Court justices during her six years as governor.
Ducey pushed back against those who have described the bill as court packing, noting that Arizona’s merit selection system limits his choices for judicial appointments. Under that system, a commission whose members are nominated by the governor and the State Bar of Arizona vet candidates for judicial vacancy and forward at least three names for the governor to choose from.
“The fact is, unlike the federal system, I can’t simply appoint anyone,” Ducey wrote.
Ducey said the merit selection system has provided him with excellent judicial candidates, and that his choice of Clint Bolick to fill his first Supreme Court vacancy was a difficult one because of the superb candidates for the position. The Republican governor noted that Bolick, a registered independent who came to the bench from the conservative Goldwater Institute, was not a member of his party.
While some have said the bill is unnecessary, Ducey said, “I believe you’ll hear a different story from the businesses and individuals facing litigation, who are in need of certainty.” The Arizona Chamber of Commerce has been a strong supporter of the bill for those reasons.
But among those who insist the bill is unnecessary is Chief Justice Scott Bales.
Bales advocated a plan by which the Supreme Court would support HB2537 only in exchange for a $10 million budget increase for the judiciary and a pay raise for all judges from the Superior Court level on up. After the Legislature passed a budget that contained some, but not all of its requests, Bales wrote a letter to Ducey, urging him to veto the bill.
No other justices have publicly voiced an opinion about the bill.
In that letter, Bales refuted the notion that the court needed more justices.
“Additional justices are not required by the Court’s caseload, and an expansion of the Court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded,” Bales wrote.
In a statement provided to the Arizona Capitol Times, Bales didn’t mention his criticisms of the bill. He expressed the Supreme Court’s commitment to ensuring a smooth transition when the two new justices join the court, as well as his own optimism that the governor would make quality appointments.
“Our merit selection system leaves me confident that the new justices, like the other judges appointed to date by Governor Ducey, will be highly qualified and committed to fairly upholding the law,” Bales wrote.
The chief justice also said he looked forward to working with Ducey and lawmakers “to ensure that Arizona’s courts, at every level, have the resources and support to continue our long tradition of serving our communities by providing forums where people can efficiently resolve disputes and protect their rights.”
Bales told the Capitol Times in March that the court’s caseload has remained stable for the past decade. He said the court would likely hear more cases with more justices, but that the court hasn’t been turning down cases because it lacks the capacity or resources to hear them. With more justices, he said the court would likely issue more opinions, though he said there are arguments going both ways as to whether that would actually be a good thing.
“I think a natural consequence of having more justices is that we’d probably take some cases that today we don’t feel really need our attention, but because there would be more of us, we want to make sure that we all have plenty to do,” said Bales, a Democrat appointed by Napolitano.
The bill’s sponsor, Rep. J.D. Mesnard, R-Chandler, said he didn’t introduce HB2537 because he thinks the court needs more justices to hear more cases or issue more opinions, though he said that would likely be a benefit. Rather, he said it was a matter of putting Arizona on par with other similarly sized states, most of which have seven or nine justices. He said a larger court is also desirable because it would disperse the justices’ substantial power among more people.
Mesnard frequently points out that the court hasn’t expanded since it jumped from three justices to five in 1960, and in the intervening decades, Arizona’s population has quintupled from around 1.3 million to more than 6.5 million.
“For me, it was never really about the workload, though I heard arguments that having more justices might enable them to take on a greater workload. And if that proves to be the case, I’m grateful. But my priorities remain the same,” Mesnard said.
Mesnard also said an expanded court would likely have more diversity. Few women have served on the court, and only one currently sits on the bench, while an ethnic or racial minority has never been appointed to the Arizona Supreme Court.
“Obviously, the most important thing is that they’re legally qualified and have a good, sound legal mind. That always has to be a priority. But I am confident that the governor, in addition to taking that into consideration, will take into consideration a number of other factors, including folks that best represent the state in every way that you can look at that,” he said.