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Newspaper’s Supreme Court analysis short on facts

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Considered in light of nearly two centuries of combined litigation experience, the Arizona Republic’s recent article on the expansion of the Arizona Supreme Court by reporter Maria Polleta, was disappointing given its overt political rhetoric. (“By adding justices to the Arizona Supreme Court, did Ducey help the state — or help himself?”) Without troubling to present historical context and practical considerations, Ms. Polleta, left readers misinformed.

Grounded in Law & Legislative Intent

Gov. Doug Ducey and the Arizona Legislature acted responsibly by increasing the size of Arizona’s Supreme Court, consistent with the intent of Arizona’s Constitutional Convention of 1910.  Delegates discussed then whether to limit the number of justices in the Constitution to five. Instead they set a minimum of three, leaving to future legislatures whether and when to increase the size of the court. Thirty-seven years after statehood, in 1949, the Court was expanded to five justices. Sixty-seven years later and with over six million more residents, the 2016 Arizona legislature expanded the court to 7. The volume of the Court’s caseload and associated work fairly called for expansion as does the increasing span and complexity of the legal issues which come before Arizona’s courts, and especially its Supreme Court. Also absent from Ms. Polleta’s article is the notable fact that today’s Supreme Court chambers, which began construction during the administration of Governor Rose Mofford in 1989, was built with chambers for 7 justices.

More Voices vs. Identity Politics

Ms. Polleta’s political treatment of expansion is also disappointing given the present tendency to reduce all judicial decisions to mere politics in another venue, and constrict policy debates to base arguments over power and class. More concerning though is the callous insertion of identity politics, the logic of which is no more reliable in choosing justices for the Arizona Supreme Court than any other court. (Somehow Clarence Thomas’ identity as a black man raised in relative poverty in mid-20th Century Georgia was not sufficient to overcome his identification as a conservative jurist to be derided by liberal constitutional theorists, at his confirmation and ever since.)  Ms. Polletta’s premise that “more voices” (Gov. Ducey’s apt phrase) can only be understood as a proxy for sex or ethnicity is flawed. More voices are more voices, and in this context most valuable where they convey broader knowledge or sharper reasoning or deeper wisdom, regardless of the sex or ethnicity of those speaking.

Ms. Polleta goes out of her way to attack Maricopa County Attorney Bill Montgomery, a principled and intelligent lawyer who across his tenure has led that office away from crisis and upward in competence.  In a jurisdiction with a legacy of crime problems, crime rates and victimizations have fallen even as prison commitments have been reduced – no simple thing to achieve. The individual (and we use that word with emphasis) in question is a West Point graduate and veteran who overcame poverty and other adversities to serve our country and our state. The suggestion that he should be discounted as an applicant because of his sex or ethnicity is not only unwise; it ignores all that he would bring to the work of the Court.

In Arizona Governors Appoint Supreme Court Justices

The privilege and power of appointment to the Arizona Supreme Court (and the Superior and appellate courts) is held by the Governor and conferred by the people when casting their votes for that office.  Moreover, that power is constrained in Arizona by both the merit selection system, dating back to the early 1970’s, and the state’s mandatory retirement age of 70, significantly differing from the executive prerogative and lifetime appointments in the Federal judiciary. Unless the Arizona Constitution is amended, all future governors will hold and exercise the same power to the same degree. We can hope they will all do so as soundly as Ducey.

Leo Beus, Paul Gilbert, Rodney Glassman, Jay Heiler, and Pat McGroder III are attorneys at Beus Gilbert PLLC. They may be contacted at rglassman@beusgilbert.com.

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