Bolick text to Ducey makes recommendation on political appointment

Clint Bolick (Capitol Media Services file photo by Howard Fischer)
Clint Bolick (Capitol Media Services file photo by Howard Fischer)

Supreme Court Justice Clint Bolick urged Gov. Doug Ducey to name Maricopa County Attorney Bill Montgomery to the U.S. Senate just days after John McCain died.

In a text message sent to Ducey obtained by Phoenix New Times, the judge called Montgomery “one of the few who could fill Sen. McCain’s shoes,” and someone “who is supported by all parts of the GOP, yet unfailingly conservative.”

Bolick told Capitol Media Services Tuesday there was nothing improper about his endorsement of Montgomery.

He acknowledged that the rules that govern the conduct of judges prohibit them from publicly endorsing candidates for public office. But the text, he said, was meant to be a private message to Ducey.

Bill Montgomery
Bill Montgomery

But attorney Tom Ryan, a Chandler attorney who has been involved in political issues and legal disputes over conflicts of interest by public officials, said that ignores the fact that Bolick sent the text from his court-issued cell phone. And that made anything he sent from there a public record, whether he intended that or not.

Even if there was no technical violation of the rules that govern judicial conduct, Ryan said Bolick should not have weighed in. He said the glowing words about Montgomery create an appearance of favoritism for the county prosecutor that would cause concern by any defense attorney who is arguing a case before Bolick.

Bolick, however, brushed aside any such concern, citing his record on the bench since being appointed by Ducey in 2016.

“I think Bill would be the first to note that his record before me is far from perfect in terms of my voting for him,” Bolick said.

Anyway, the judge said, this wasn’t a political “campaign.” Instead it involved the governor fulfilling his legal duty to fill vacancies created in the Senate.

Ryan dismissed that argument, calling the appointment of a senator — who in this case had to be a Republican like McCain — an “overtly political act.”

The text, sent the afternoon of Aug. 27, starts with an apology “for joining what I am sure is a tsunami of unsolicited advice.”

“Wicked smart principled, West Point, very modest beginnings, young enough to be there for a long time,” Bolick wrote. “Can work across the aisle.”

Bolick said he was acting on his own and not on any request by Montgomery, who he said is “very much in the mold of Jon Kyl.”

Doug Ducey
Doug Ducey

“Clint — thank you,” Ducey texted back.

“Always value your advice and recommendations,” the governor continued. “I share your admiration of Bill. He is one of our finest.”

As it turned out, Ducey named Kyl to serve until the 2020 election.

Kyl, however, may not remain that long.

In being appointed, however, Kyl, who had served in the Senate for 18 years before retiring at the end of 2012, vowed only to serve through January. That enabled him to vote to confirm Brett Kavanaugh to the U.S. Supreme Court after having been tapped in his private practice to help guide him through the confirmation process.

Kyl’s press office in Washington did not respond to a query about the senator’s intentions. But if Kyl does quit, Ducey will have to find someone to take his place.

Montgomery on Tuesday sought to distance himself from the whole issue.

“I was one of many who supported Sen. Kyl’s appointment and did not ask, seek, or have any conversations about being appointed,” he told Capitol Media Services. And he said too much was being made of what Bolick had done, calling it “an unsolicited private email making a recommendation that didn’t happen.”

And what if the seat were to again become vacant?

“My best answer is that I’m the county attorney until I’m not,” Montgomery responded.

Bolick said he did not understand the fuss over the text.

“I don’t think this is really any different than me expressing a view about an appointment to the governor personally,” he said. “Judges remain citizens.”

Anyway, Bolick pointed out, the rules do not create an impenetrable wall between judges and politics.

“Judges are allowed to make political contributions and often do,” he noted, contributions that candidates have to report in publicly available campaign filings.

“Judges are allowed to privately express their views on candidates for office,” Bolick continued. “I don’t think the fact that a private communication is made public changes that analysis.”

And Bolick said what he did is “one big step removed from that” because Montgomery was not a “candidate” running for office.

There was no immediate response from Ducey about whether he thinks it’s proper for a sitting state Supreme Court justice to be making recommendations for appointments to political office.

Bolick said no one has ever suggested that sitting justices cannot express their opinions.

He pointed to an interview U.S. Supreme Court Justice Ruth Bader Ginsburg did in 2016 with the New York Times — before the presidential elections — where she joked that if Donald Trump became president it could be time to move to New Zealand.

“I can’t imagine what the country would be with Donald Trump as president,” she said.

And Sandra Day O’Connor, watching election returns in 2000 at a party with friends, said, ”It’s over” when the networks were saying Democrat Al Gore had won the election.

Her husband, John, offered the explanation that his wife wanted to retire and was not interested in having her seat filled by a Democratic president. But that did not stop O’Connor from becoming the fifth vote on the nine-member court to halt the recount of Florida ballots, meaning Republican George W. Bush would be elected.

Years later, O’Connor appeared to have some second thoughts, suggesting that perhaps the court should not have taken the case in the middle of the election counting.

Ducey attorneys respond to lawsuit challenging process of Senate appointment

Gov. Doug Ducey appoints Rep. Martha McSally to the fill John McCain’s senate seat currently held by Jon Kyl who stepped down Dec. 31 PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES

Attorneys for Gov. Doug Ducey are asking a federal judge to throw out a lawsuit demanding that he call an election — and soon — to determine who will occupy the U.S. Senate seat following the death of John McCain rather than let Martha McSally keep the post until 2020.

In legal papers filed Friday, Brett Johnson, who is leading the legal team, acknowledged that vacancies in the U.S. Senate must be filled by a special election. But Johnson told U.S. District Court Judge Diane Humetewa that the U.S. Constitution allows the Legislature to let Ducey name a senator to serve until the next regular election.

The governor initially named Jon Kyl. And when Kyl quit at the end of last year, Ducey tapped McSally who had just lost her own Senate race to Democrat Kyrsten Sinema.

And the fact that election won’t be until 27 months after McCain’s death last August, he said, does not alter Ducey’s ability to have McSally serve until 2020.

Anyway, Johnson said, a special election solely to name a replacement would not just be expensive but also would give the edge to wealthier candidates.

In a lawsuit filed last year, attorney Michael Kielsky, chairman of the Arizona Libertarian Party contends that the governor must call a special election as soon as practicable to fill the post, a period he said is no longer than six months. Kielsky, representing two registered Democrats, one Republican, one Libertarian and an independent, said there is no reason for an unelected person of the governor’s choosing to be able to serve through the end of 2020.

But Johnson said Kielsky is misreading the law.

There is no question but that Arizona law allows a governor to appoint a temporary replacement when a Senate vacancy occurs. That person has to be of the same political party as the senator who quit or died.

And the law does require that there be an election to determine who gets to finish out the balance of the term. In McCain’s case, his term ran through 2022.

Johnson, however, said if the next regular election is not within six months, then the appointee can serve until the regular election after that.

In this case, McCain died on Aug. 25. That was just three days before last year’s primary and 73 days before the general election. Based on that, Johnson said, Ducey had the power to name someone to serve until the 2020 election when the final two years of McCain’s term will again be up for grabs.

Kielsky, however, wants Humetewa to rule that voters should get a chance to name someone of their choice long before the 2020 election — a person who could be of any political party.

Johnson, in his new legal filing, said the “inconvenience and expense of a special election outweighs any advantage to be derived from having a more prompt vacancy election.”

He told the judge a special statewide election in 2016 dealing with school finance cost the state more than $6.4 million. And in this case, Johnson said, a special election would require both a primary and general election.

Johnson also claimed that a special election would give an edge to “special interest groups and candidates with considerable self-wealth or funding” because of what he said the cost of having to finance an off-year campaign. By contrast, he argued, having the vote to fill the balance of the Senate term at a regularly scheduled election “creates a greater opportunity for a stronger pool of candidates to run.”

And Johnson said special elections have a lower turnout.

Johnson also brushed aside the complaint that the current practice is unfair because it means the person that the governor appoints has to be of the same political party as the person being replaced.

No date has been set for a hearing.