Gov. Doug Ducey selected two new justices for the Arizona Supreme Court Monday, including the first Hispanic to serve on the state’s top bench.
The governor chose John Lopez IV, 47, who is currently the state’s solicitor general. He heads the division inside the attorney general’s office charged with defending the state in litigation.
Lopez also has been called upon to issue legal opinions in cases where Attorney General Mark Brnovich has had a conflict of interest.
Also tapped for the bench is Andrew Gould, 54, currently a judge on the state Court of Appeals.
Both are Republicans like Ducey. Gould was formerly a Superior Court judge in Yuma County.
In an exclusive interview with Capitol Media Services, the governor praised all seven who were nominated by the Commission on Appellate Court Appointments for the two new vacancies created earlier this year when the legislature voted to expand the court to seven. And the governor said he interviewed all nominees, including the Democrat and independent.
But Ducey, who said the interview is the prime factor in his decision, said these two stood out in being the closest to what he wants from the third branch of government.
“I’m looking to someone who has a fidelity to our founding documents: the Declaration (of Independence), the Constitution and the state constitution, has a love of the law and an understanding of the separation of powers,” the governor explained. “I made the very difficult decision to pick who I thought were the two best.”
But the governor made it clear he’s interested in more than general questions about judicial philosophy.
“I want to know their opinion on certain cases,” said Ducey, who also had general counsel Mike Liburdi in on the interviews.
Ducey would not disclose which prior rulings he asks about to gauge the views of applicants, saying he wants to keep that under wraps so as not to tip off others who will be applying for judicial vacancies. That most immediately will mean the process to replace Gould on the Court of Appeals.
And the governor, who is opposed to abortion, specifically declined to say whether he asked any of the applicants about their views on the legal issues associated with the practice.
That could become an important issue in the next few years with President-elect Donald Trump vowing he will appoint justices to the U.S. Supreme Court who are opposed to abortion.
That opens the door to overturning the historic ruling of Roe v. Wade when the nation’s high court concluded women have a constitutional right to terminate a pregnancy in the first trimester. Subsequent court rulings have expanded on that right.
If Roe v. Wade is overturned, that leaves the question of abortion to each state, as it was before the 1973 ruling. In Arizona, elective abortion was illegal at the time.
What could make a difference is that the Arizona Constitution has something not spelled out in its federal counterpart: a specific right to privacy. And while that provision existed even when abortion was illegal in Arizona, there is an argument that right to privacy could form the basis for keeping the practice legal even if Roe v. Wade is overturned.
Ducey, however, made it clear that he’s not interested in jurists who are looking for ways to overturn what state lawmakers have approved.
“The litmus test is that people want to uphold the law, that they want to be a judge and not a legislator,” the governor said.
“I look for judges that want to interpret the law as written,” Ducey continued, espousing what some call “texturalism” or “originalism.”
“But I don’t think that judges should be writing the law, rewriting the law or fixing the law,” he said. “That is the legislature’s job.”
The governor, who previously appointed political independent Clint Bolick to the high court, is getting to name the two Republicans because of a law he signed earlier this year expanding the bench. He said a larger court will mean the ability to take on more cases as opposed to simply affirming appellate court rulings by refusing to consider them.
“I also think it right-sizes the court to states of equal size and equal population,” the governor said.
Ducey said the chance to name the first Hispanic to the Arizona Supreme Court did not figure in his decision. “These selections were made on the merits,” the governor said.
“His interview was excellent,” Ducey said, saying Lopez had “incredible references and recommendations.”
Lopez helped out the governor at least indirectly earlier this year when he issued an opinion declining to block the release of funds for Proposition 123. That voter-approved measure crafted by Ducey earmarks $3.5 billion for schools in the coming decade, including $2.2 billion in extra withdrawals from the state land trust account.
State Treasurer Jeff DeWit, a foe of the plan, had raised legal questions about the distribution. But Lopez declined to intercede, saying it would be improper because of a pending federal court lawsuit.
Lopez also told members of the state Board of Investment they face no personal liability for going along with what voters approve, even if a court were to subsequently decide the move was illegal.
He also is involved in an effort to have the Arizona Supreme Court overturn an appellate court ruling which voided state law denying bail to accused sex offenders. The majority ruling in that case concluded that the constitution allows people to be kept in jail pending a trial only if prosecutors can show that no conditions of release can be imposed to ensure protection of others.
That ruling was not unanimous, with Gould filing a dissent.
He said the express purpose of the statute and its companion state constitutional provision “is to protect victims and the community.” That, he said, makes its purpose “regulatory, not punitive.”
Gould also authored a unanimous appellate court ruling which said Arizonans can sue those who have harmed them, even in cases in which they had voluntarily agreed to arbitrate instead. He wrote that arbitration agreements that are a financial burden on individuals are legally “unconscionable” and therefore unenforceable.
That ruling, believed to be the first of its kind in the state, was a major victory for those who may not have thousands of dollars to fight a claim through arbitration. Instead, it permitted them to retain an attorney who is willing to handle the case on a fee-contingent basis and be paid only if he or she wins.
It also was a setback for many businesses that now routinely put boilerplate language into contracts requiring clients and customers to submit to arbitration. But it is most likely to affect the most complex and costly claims like medical malpractice.