The next justice on the Arizona Supreme Court will come from a list of seven candidates that includes four Court of Appeals judges, a public defender, a lawyer in private practice and a controversial county attorney.
Unlike the selection process in March to fill a previously vacant seat on the court, Maricopa County Bill Montgomery had enough votes Friday from the Commission on Appellate Court Appointments to become a finalist. He is joined by three previous finalists Kent Cattani, Maria Elena Cruz and Andrew Jacobs. Richard Gordon, who Gov. Doug Ducey interviewed in the spring, narrowly missed the cut from nine to seven choices.
Also joining the interview list is Sean Brearcliffe, a judge on the Court of Appeals Division II; David Euchner, a Pima County public defender and Randall Howe, a judge on the Court of Appeals Division I. Jennifer Perkins was not selected to advance.
As a Constitutional requirement, the commission must send at least three names to the governor, who makes the final decision, and any more than three must abide by not having more than 60 percent from the same political party. Gordon did not make the cut because of this reason.
Cruz and Jacobs are Democrats, Euchner is a Libertarian and the remaining choices are all Republican.
The commission tentatively approved eight of the candidates, but since Gordon received the fewest votes – of seven – among Republican nominees, he was voted to be struck from the final list.
The process was wildly different than when the commission found the eventual replacement to Justice John Pelander in March. For example, four new members were appointed and confirmed to the commission replacing three who did not vote for Montgomery previously, two of whom are Democrats.
Now of the 13-member commission, Now there are eight Republicans and five independents on the 13-member commission, although only 12 members showed up for the interviews.
All four new members voted for Montgomery to advance; only Phil Townsend and Larry Suciu did not vote for him.
During the due diligence portion of the process, commissioners discussed what they found out about their assigned candidates. Kathryn Townsend, a new commissioner from Pima County, conducted the check on Montgomery and told other commissioners she thinks the reason why Montgomery has a lot of opposition is because “he is a Conservative, white, Christian, cisgendered, heterosexual male,” and that people who don’t like the county attorney “don’t really know him and are responding to a caricature of him.”
Townsend added that if he didn’t make the final list it would be because “he didn’t have the right identity politics.”
Townsend is a registered independent, who self-identifies as Libertatian leaning, and was a former Republican precinct committeeman up until 2012.
Suciu conducted the due diligence on Montgomery last time, and brought it up again before voting.
He said a candidate needs to have “judicial experience” when vying for a spot on the Supreme Court. “You don’t go there for training,” he said. He also brought up last time how Montgomery mentioned in his application he was a part of four appellate cases in his career, but Suciu talked to lawyers on all four who told him he only looked over briefs. This was at least one reason why Suciu did not vote for Montgomery to advance.
Cruz became the sole candidate this time to receive unanimous approval from the 12 commissioners, which bodes well for her chances. Justice James Beene, who replaced Pelander on the court, was the only one in March to receive full support.
Cattani, Euchner and Jacobs both received 11 votes, Brearcliffe and Montgomery had 10 and Howe advanced with nine.
Another major difference from the procedure in March is Montgomery was pressed a lot harder with Justice Scott Bales (who was chief justice then) there to ask questions about his strong beliefs. That on top of an intense effort from the ACLU of Arizona was enough to keep him off the final list, but this time Chief Justice Robert Brutinel, and the other commissioners only asked Montgomery, as well as everyone else, eight questions and provided time for all candidates to speak freely about anything they would care to add.
When it came time to vote on the list to send to Ducey, one commissioner took a shot at the media for speculating some type of agenda about how the members would vote on certain candidates – specifically Montgomery.
“It’s unfair to the process,” Buchanan Davis said, likely referring to a story in the Arizona Mirror that said the new commission appointments could sway in the county attorney’s favor.
Whether that is the case is unclear, but new commissioners were among several who suggested sending a list of seven names instead of the typical five.
The list of seven candidates all would add some type of historical importance were they to be appointed by the governor.
Cattani is the only person in state history to have been in consideration for all seven Supreme Court seats. Cruz would be the first Black or Latina member on the highest court, only the second woman currently, and fifth in state history. Euchner would become the first Libertarian appointed, which came up during the post-interview discussion.
Commission member and former lawmaker Jonathan Paton brought up this piece of trivia and Brutinel quipped that his colleague Bolick would beg to differ, but Paton reminded everyone Bolick was chosen when we was registered as an independent, not as a Libertarian.
Euchner, as well as Brearcliffe would provide some Pima County representation. Pelander was the last justice to come from that county.
And lastly, Howe would become historic for a reason separate from everyone else. Howe would be the first person on the state Supreme Court with cerebral palsy.
Ducey now has 60 days to make his fifth appointment to the Supreme Court.