Gov. Doug Ducey now faces a moment of truth that will have a major impact on his political legacy. A moment that will tell us whether he believes in the appointment of judges based on merit as required by the Arizona Constitution. A moment that tells us whether he believes in a Supreme Court that is diverse and nonpartisan.
It was reported in the media that Ducey supported expansion of the Supreme Court from five to seven members so he could add appointees who would add diversity to the court and presumably share his views. The governor appointed two well-qualified men to fill the additional seats.
However, it was more recently reported in the media that the governor added four new members to the Commission on Appellate Appointments (two Republicans and two independents, one who was a former Republican precinct committee person) so that he could make certain that County Attorney Bill Montgomery, one of the applicants for the current vacancy on the Supreme Court, would be on the list sent to him by the commission. This, despite the fact that Montgomery was soundly rejected by the commission four months ago.
In an op-ed article last month, I joined 20 past State Bar of Arizona presidents and called the governor’s attention to the fact that the Constitution requires the Nominating Commission and the court to be diverse and nonpartisan and that the overriding consideration in appointments to all of our courts must be merit. The views of commissioners reported in the media following Montgomery’s first appearance before the commission indicate that he was regarded as one of the least qualified of those seeking an appointment to the Supreme Court. Significantly, nothing in Montgomery’s record changed between his first appearance and his appearance before the commission last week.
Despite this history, Montgomery was nonetheless included on the list sent to the governor. The only change between Montgomery’s first and second appearance was in the political composition of the commission – all of the governor’s recent appointees voted to include Montgomery on the list sent to the governor.
Arizona has a judiciary recognized nationally for its excellence. As the result of the merit selection system, Arizona has been spared the unseemly partisan elections fueled by millions of dollars of special interest money. If the governor wants his legacy to reflect his commitment to merit selection and to an impartial, nonpartisan judiciary, he will appoint one of the several highly qualified candidates on the list sent to him – one without Montgomery’s political baggage and lack of appellate experience.
Mark I. Harrison is an attorney with Osborn Maledon in Phoenix.