Academic journal article Fordham Urban Law Journal

On the Validity and Vitality of Arizona's Judicial Merit Selection System: Past, Present, and Future

Academic journal article Fordham Urban Law Journal

On the Validity and Vitality of Arizona's Judicial Merit Selection System: Past, Present, and Future

Article excerpt

This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to "traditional elections." (1) Part I of this Article sketches the history of Arizona's merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, largely through extensive interviews of many participants in Arizona's merit selection system, Part III describes the current status of merit selection in Arizona and offers some fresh perspectives on the value of merit selection, with suggestions to assure its preservation in Arizona and its implementation elsewhere. The Article concludes that merit selection, while not a perfect system, is operating commendably and has significant advantages over a system of traditional, partisan or non-partisan elections.


A. Judicial Appointments and Elections Before Merit Selection

Before the implementation of the merit selection system, (2) voters elected judges for limited terms. Vacancies in office prior to election--whether by death, retirement, or the creation of new judgeships--were temporarily filled until the next general election by gubernatorial appointment. (3) In practice, however, vacancies were filled far more often by these appointments than by popular election. In 1973, sixty-two percent of the sitting Superior Court (4) judges were first appointed--twelve of the previous thirteen judges appointed in Maricopa County were appointed by the governor. (5) Gubernatorial appointments were not subject to senate confirmation or any other checks and balances. (6) Nevertheless, an overwhelming majority of all judges were gubernatorial appointees who remained on the bench. From 1958 to 1972, over one-half of the candidates had no challenger on the ballot, and two-thirds of those who did won their contest. (7) Of the six defeated judges during that same period, three gained reappointment and a fourth was subsequently reelected to an appellate court. (8)

Superior Court judges were elected for terms of four years. Appellate court judges (9) were elected for terms of six years. (10) Although judicial elections were statutorily declared "non-partisan" because political party affiliation was not indicated on the ballot, candidates' names usually reached the ballot through party primaries. (11) While ethical restraints generally prevented judicial candidates from campaigning with respect to specific issues, many nonetheless ran on platforms supporting longer sentences and harsher treatment of criminal offenders; this despite the fact that most or all of their post-election judicial service would be devoted to non-criminal matters. (12)

The reality of judicial politics forced most observers to acknowledge that typical voters were unaware of the candidates, the issues, or even the existence of contested judicial races. (13) Campaigning proved cost-prohibitive for judges who made meager salaries. In metropolitan areas, challenged incumbent judges were assigned newsworthy cases in order to increase their exposure in the news media. (14) Incumbent judges had additional practical advantages over challengers: incumbents were identified in campaign advertising as "Judge," and voters often had a tendency to vote to maintain the status quo. (15) While political parties were permitted to support various judges, the Republican party reportedly provided more help to judicial candidates than the Democratic party provided. (16) From 1958 to 1972, the incumbent was defeated in only 10 out of 215 judicial elections. (17) In other words, over ninety-five percent of the time, the election did not change the composition of the bench. …

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