In November 2012 voters in Arizona will address Proposition 115, entitled The Judicial Department. It arises from the Senate(SCR 1001) as a proposed Constitutional Amendment. If passed, Proposition 115 would amend the Arizona Constitution to change the way state judges and justices are selected and retained. Superior Court judge terms would change from four years to eight years; Court of Appeals judge and state Supreme Court justice terms would would change from six years to eight years. Judges and justices would be required to retire at age 75 (currently 70). Today, judicial vacancies are filled by a commission of five attorneys nominated by the State Bar of Arizona. This proposition would have four of the commission attorneys appointed by the Governor, and one by the President of the State Bar. The minimum number of judicial nominees submitted for a vacancy would be increased from three to eight, and the limitations on the number of nominees from a particular political party would be repealed. The Supreme Court would be required to make opinions and orders of state judges and justices available electronically on the Supreme Court website. Sixty days before the general election, the legislature would meet with and take testimony from the judges and justices who are up for retention. A copy of the judicial performance review of each state judge or justice would be required to be transmitted to the Legislature prior to that meeting.
Advocates of Proposition 115 say that:
- It is important that the Governor be presented with as many qualified applicants as possible to pick from in making judicial appointments. Similarly, it is critical that voters have adequate access to judges' decisions and performance ratings in order to make an educated decision about which judges to retain at election.
- Prop 115 gives more applicants an opportunity to be considered for judgeships. Currently, there could be dozens of applicants for a single position, yet only 3 names may be forwarded to the Governor for consideration. This is an unreasonably low number, and could deter very qualified people from even applying. Prop 115 fixes this problem by increasing the minimum number to 8, giving more applicants an opportunity to be considered. Prop 115 increases the qualifications for attorney members of nominating commissions; more qualified people screening applicants for judgeships just makes sense. It also requires judicial opinions to be published online, increasing transparency and accountability to the public.
- This measure is a step forward to improve the accountability and transparency of how judges are selected in Arizona.
- Party affiliation should not be a factor in evaluating the qualifications of judges.
- When you vote on judges, how do you know if the judges on the ballot have done a good job? Prop. 115 gives you more information about how the judges perform in office so you can make an informed decision when you cast your vote. As for selecting new judges, competition produces excellence.
- Prop. 115 improves the selection process to make sure that each and every judicial vacancy is filled based on merit, not politics.
Opponents of Proposition 115 say that:
- It would basically eliminate the State Bar's role in the judicial selection process and leave it in the hands of the Governor, who would appoint almost all members of the nominating commissions for Maricopa County, Pima County and appellate court appointments.
- The current "Merit Selection" system allows for a non-partisan method of judicial selection that Proposition 115 does not improve. Instead this proposition would politicize the selection of judges.
- In our current system, selection committees made up of fifteen private citizens, ten of whom are not lawyers, conduct extensive background investigations and interview applicants to evaluate their qualifications. Those citizen committees are required to recommend at least three judicial candidates to the Governor for each vacancy. The nominees cannot all be members of the same political party. The Governor then appoints one of the nominees. This system has been a nationally recognized success. Proposition 115 would increase partisan political influence and could reduce the quality of our judges. First, it would increase political control of the appointment of the selection committees by giving the Governor power to appoint fourteen of the fifteen members. Second, its requirement that selection committees nominate at least eight instead of three applicants could result in the appointment of less qualified or unqualified judges. Third, it allows all of the nominees to be members of the same political party. Fourth, it would subject judges to political pressure by allowing the Legislature to conduct hearings on judges who are on the voter retention ballot.
- Our court system has been a model for the rest of the nation for creating an impartial and independent judiciary. Merit selection by the Governor appointing from a list of candidates by Nominating Commissions has worked very well and no change is required.
- Judges will be required to testify before the legislature about their decisions before their retention election, replacing an independent non-partisan evaluation process. Prop 115 invites political interference in the judicial branch, weakens the separation of powers and threatens judicial independence and impartiality.
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Note: pro and con arguments for the proposition were quoted or paraphrased from the official arguments. More arguments may have been submitted; I am presenting only a few that I believe will most help readers decide how to vote. You can find the entire wording of the ballot proposition, and all the pro and con arguments, in the official election pamphlet.