Gov. Doug Ducey has been in office for 1,942 days, and has made 71 judicial appointments over that span, but his picks will have a lasting impact on Arizona long after he leaves office.
On April 24, Ducey surpassed Gov. Bruce Babbitt for the most appointments in state history after naming three judges to the trial court in Maricopa County and one to the Court of Appeals Division One. Coincidentally, Babbitt was the last Arizona governor to successfully serve two full terms.
Ducey passed him with still more than two years left to go and plenty more picks to make.
His record-breaking choices extend to more than just the most overall, but it’s hard to imagine any future governor would appoint five or more Supreme Court justices during their term as governor, something he accomplished in 2019 after appointing both Justice James Beene and Justice Bill Montgomery.
Ducey is able to make judicial appointments through a process called merit selection. A commission – either for trial courts or on the appellate level – narrows down a field of applicants through an extensive vetting process to send a list of qualified candidates for an interview with the governor and subsequent appointment. It’s required to send at least three names (with party restrictions), but commissions will typically send five – and occasionally more.
ASU law professor Paul Bender said the longer the list of candidates Ducey has to choose from, the more likely the picks become political.
“The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people,” Bender said. “When you start sending in five or seven names, that doesn’t work as well anymore.”
From Ducey’s recent pick of Cynthia Bailey to the Court of Appeals, he was given a list of 11 candidates. The commission in this instance barely winnowed down the field, only eliminating one candidate.
When Ducey appointed Montgomery in September, he interviewed seven people. For each of Gov. Jan Brewer’s three appointments to the highest court, she was given a list of just three names. Clearly, Ducey has received more freedom to make picks than previous governors.
“The more names you give him the more it’s like he can pick whoever he wants,” Bender said.
Ducey has also come under heavy scrutiny from mostly Democrats on his appointments to the nominating commission. Made up of 15 people with the chief justice serving as its chair, there is not a single Democrat involved. The commission is also in charge of vetting candidates for the Independent Redistricting Commission providing a double-whammy of sorts for Republicans to regain control of Arizona’s next political decade.
Bender referenced the governor’s picks to the Commission on Appellate Court Appoints as a further reason he is able to choose who he wants, within reason.
“The combination of the fact that he’s been able to put people on the commissions and the fact that the commissions are giving him a lot of names, has given him more freedom than previous governors have had since the merit selection system started,” Bender said.
Through his 71 total appointments, he has spread around diverse picks to shake up the courts. Ducey has appointed the most women, the most members who don’t belong to his own party and sits behind only two governors for the most racially diverse selections. But looking into where those picks have gone, he seems to favor diversity on the lower level courts.
Ducey appointed 25 total women to the courts, but not one serves on the Supreme Court, though he has interviewed several. He appointed four women to the Court of Appeals (compared to nine men), and the bulk of his female selections went to the Maricopa County Superior Court.
His appointments to the Supreme Court consist of five men, but four are Republican and the one who is not, Justice Clint Bolick, is an independent who is still viewed as highly conservative.
His Democratic and third-party picks typically go to the Superior Courts as well. He has appointed 29 people not belonging to the Republican Party – and only four (including Bolick) are on the appellate level.
Bender said this is important because appellate courts are the ones who are really making the laws.
“It is more important to have political balance on the appellate courts than it is on the trial courts, because the appellate courts make the law and the trial courts just decide the cases,” he said.
Ducey’s picks will also last a while because he has made a habit of appointing younger judges. The courts have a mandatory retirement age of 70 and at least on the Supreme Court, none of the justices will reach that mark until at least 2027. Bolick is the oldest being born in 1957, but Chief Justice Robert Brutinel (a Brewer-appointee) could keep up with tradition and retire after his five-year term as chief ends in 2024. So barring a resignation or death, or a lost retention vote, 2024 seems to be the earliest the next justice will be named to the high court.
One judge who interviewed with the governor for an appointment said Ducey doesn’t ask easy questions and was engaged in the answers.
Ducey expects some level of analytical explanation in the response, and he’s not looking for specific answers either, and he also asks about relevant beliefs like the role of a judge or justice, separation of powers, and specific constitutional provisions. He asks personal questions too, such as reading choices, greatest personal accomplishments and time spent outside of law.
The judge said Ducey doesn’t always conduct the interviews though. Sometimes he leaves it up to his staff, and that he probably seeks judges who approach the role with humility and a recognition of the separate branches of government.
Ducey laid out his judicial selection process in a “fireside chat” with former U.S. Sen. Jon Kyl in 2019.
Ducey point blank says he has asked the commission to send him more names. He said he doesn’t like the word “legacy” being used to describe this because it puts too much focus on the individual, but uses it anyway.
“These are legacy picks,” Ducey said. “These are people that almost all will outlive the term of the governor.”
When it comes to asking questions of his eventual appointments, Ducey said there isn’t a litmus test, but he likes to start with judicial philosophy. He went on to say he’s really trying to find out if the candidates want to be a judge or if they would be better equipped running for the Legislature.
“If they want to be a judge, that’s the person I want to select. If they want to make policy, they should go run for office,” he said.
Ducey also has made a habit of choosing judges from lower courts, which has heavily played into why he has made so many appointments, and will continue to do so. But less so on the Supreme Court where only two of his five picks came from a lower court – Beene and Justice Andrew Gould.
Bender compared that “strategy” to one a lot of Republican presidents have used to shape the federal court system.
“President Eisenhower was the one who started it. He started appointing people to the Supreme Court from the courts of appeals and he also ended up appointing people to the Supreme Court that he’d already appointed to the courts of appeals,” Bender said, adding that he views this as a problem because it shows a lack of diversity for justices’ backgrounds.
But for Ducey, Bender doesn’t view his picks to the Supreme Court as a negative in that instance.
“To me, that’s a strength that you have a court that is composed of people from different areas,” he said.