Arizona Supreme Court Chief Justice Scott Bales has not hired any clerks for the year, which coupled with the looming end as the court’s leader could spell retirement.
A Bales retirement would also give Gov. Doug Ducey his fifth appointment on the seven-member court.
In a recent interview with the Arizona Capitol Times, Bales said he hasn’t committed to retirement when his five-year term as chief justice ends June 30, but ASU law professor Paul Bender said the justice’s decision not to hire clerks suggests Bales is seriously considering retirement.
“If the choice was 50-50, he would have hired clerks,” Bender said. Not hiring any would mean he’s likely not returning, Bender said.
Bales said clerks typically are hired a year before they would start.
“I didn’t want to have people committed to begin working for me next fall and have me in effect pull the rug out from under them and say, ‘Oh I’ve changed my mind. I’m going to do something else,’” Bales said.
Bales, the only Democrat on the Supreme Court, said he has not made his decision yet to retire come June, but he has thought about what he would do if he does.
Remaining on the court after the five-year term as chief justice is rare. Of Arizona’s previous six chief justices, only two remained on the court for more than one year. Rebecca White Berch – who held the title before Bales – remained on for 15 months, and Stanley Feldman remained on for five years.
If Bales were to remain, he could still serve until 2026, the year he turns 70, and by law has to retire. The last justice to retire due to turning 70 was the Charles Jones in 2005. Jones died December 20 at age 83.
Whether Bales does retire, Ducey will get to at least appoint his fourth justice, more than any other governor in Arizona history, after Justice John Pelander retires on March 1.
Ducey already appointed Justice Clint Bolick in 2016, and then the two newest justices later that year when the governor signed the law expanding the highest court from five to seven justices. Andrew Gould and John Lopez IV were both appointed to fill the new seats.
After Ducey appoints Pelander’s successor, he would have a simple majority of the court. If Bales retires, that’s five of the seven seats. Governor Jan Brewer appointed the remaining two – future Chief Justice Robert Brutinel and future Vice Chief Justice Ann Scott Timmer.
Only twice since 1974, the year voters put Arizona’s merit system for selecting judges and justices in place, has a governor appointed a justice from a different political party than the governor’s. Ducey chose Bolick, an independent, and in 1998, Republican Gov. Jane Hull chose Democrat Ruth McGregor, who sat on the court until she retired in 2009 and was replaced by Pelander.
Applications for Pelander’s successor close on January 25, and shortly after that the Commission on Appellate Court Appointments will meet to vet the applicants and pass along its nominations to the governor.
Ducey will have 60 days to make the appointment.
Bales, who chairs the commission, said he is hoping to get applications to the governor by March 1 so there won’t be a longer gap in between justices on the court.
Bender speculated Pelander’s eventual successor could come from Pima County like he did.
Bender said it’s tradition to have at least one justice from a different county than Maricopa.
Bales said adding somebody from Pima could be a good idea since it provides perspective from a different county, but there are other qualities necessary for a justice.
“You want someone who is thoughtful, open to considering the views of others, and deliberative. Someone who is determined to uphold the law, but do so independently. Not be swayed by what may or may not be popular,” he said.
Bales has served on the Supreme Court since 2005, and before that worked for a private practice from 1985 to 1994, was an assistant U.S. attorney for the District of Arizona from 1995 to 1999, the Arizona solicitor general from 1999 to 2001 and then returned to a private practice until Democratic Gov. Janet Napolitano appointed him to the Supreme Court.