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Ducey to choose from 5 nominees to fill Supreme Court vacancy

County Attorney Bill Montgomery doesn't make the cut

Symbol of law and justice in the empty courtroom, law and justice concept.

Absent from the list of nominees was Maricopa County Attorney Bill Montgomery.

The Commission on Appellate Court Appointments had to send at least three names to the governor to fill the seat now officially vacated by Justice John Pelander, whose final day as a justice was February 28. After strong consideration the commission chose Court of Appeals Division I judges James Beene, Kent Cattani, and Maria Elena Cruz,  Pima County Superior Court Judge Richard E. Gordon and Snell & Wilmer attorney Andrew Jacobs.

Beene, Cattani, and Gordon are Republicans while Cruz and Jacobs are Democrats.

Beene was the only candidate to receive a unanimous backing of the 12 commission members who were present. Cattani and Cruz followed with 11, then Jacobs with eight, and Gordon rounding out the five with a minimum of seven votes. Joshua Hall, a commission member from Navajo County who is registered independent made sure to let the other commission members know his thoughts on one specific candidate.

“Cruz was the best today,” he said.  

Ordinarily one would need a minimum of eight votes from the 15-member committee, but since there is one vacancy on the appellate commission and two members (both representatives of Pima County) were absent the majority of 12 people was all that was necessary.

When Charie Wallace, the longest tenured member on the commission motioned for Cruz she mentioned how Cruz checks all of the diversity boxes. She is a woman, represents both Maricopa and Yuma counties, where she previously worked as a superior court judge, and she is half black, half Latina. If she gets appointed, she would become a big part of history.

Only four women have ever served on the Arizona Supreme Court, but none of them have been appointed by a male governor. She would be the first Latina to serve on the bench, the first African-American, and would mark the second time Governor Doug Ducey would appoint a member of a different party than his own, and the third time in history.

Noticeably absent from the list is Montgomery, who has stole the spotlight since candidates were announced on January 25. Montgomery only received 5 votes of the 12.

The commission interviewed all 11 candidates consecutively today – with breaks – and narrowed the list to send to Governor Doug Ducey who now has 60 days to make his fourth appointment to the highest court.

During the interviews, applicants were asked everything from when a judge should write a dissenting opinion to how technology will affect the courts in the next five years. Chief Justice Scott Bales asked Montgomery a question special for him in four parts.

The questions were about how Montgomery’s strong beliefs give him concerns about how Montgomery would be fair as a judge. Bales listed Montgomery’s stance on marijuana legalization, criminal sentencing, victims rights, public records, LGBTQ rights and his personal religious views. Montgomery at one point in December said his job “is where God wants me to be.” Bales also asked about misconduct in Montgomery’s Office, how his career experience as a lawyer is not much like the experience of an appellate judge and mentioned how people perceive Montgomery as someone who is more of a politician than a jurist.

He asked Bales to repeat himself while answering the question point by point and eventually answered several points saying he will put his political beliefs aside because he is “required to uphold the Constitution.”

Also what may have hurt Montgomery’s chances was an outpouring of opposition lead by the ACLU of Arizona who asked its social media followers and email recipients to send letters expressing their concern that Montgomery was vying the seat.

“Bill Montgomery has helped fuel Arizona’s mass incarceration crisis by advocating for the passage of laws that put more people into prison for longer periods of time and aggressively fighting against every meaningful attempt at reform,” the email read.

Montgomery did have a strong backing from colleagues who spoke and wrote on his behalf, but publicly people were dissatisfied with him seeking the highest court in the state. As a last ditch effort, Arizona Attorney General Mark Brnovich even gave his endorsement for Montgomery before the interviews took place. Brnovich brought up Montgomery’s integrity and justice and said “no one is more organized [than Montgomery].”

Several experts talked about how they thought Pelander’s replacement should come from Pima County like he, and that point was reiterated by the commission before the interviews and with the candidates they selected to advance. Both Jacobs and Gordon come from Pima County. Gordon currently works there, while Jacobs moved from Tucson to Phoenix at the end of 2016.

For diversity sake, Cruz is not the only diverse member of the shortened list. Beene lists in his application he is Hispanic/Latino on his mother’s side, which if appointed would pair him with the first ever Latino justice in state history, John Lopez IV, who Ducey appointed in 2016.

Whoever Ducey does appoint would give him the majority of appointments with the potential to appoint his fifth justice if Bales decides to retire once his term as chief justice ends this summer.

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