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The Verde Independent | Cottonwood, Arizona

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12/27/2010 10:01:00 AM
Lawmakers seek return to electing judges after redistricting dustup

Howard Fischer
Capitol Media Services

PHOENIX -- The dust-up over the process of nominating candidates for the Independent Redistricting Commission is giving new ammunition to those who want to scrap Arizona's merit selection process for judges.

Several key state lawmakers say they would welcome the chance to revisit the 1974 constitutional amendment, which took away the right of voters to directly elect judges to the Arizona Supreme Court, the state Court of Appeals and the superior courts in Maricopa and Pima counties.

Some, like incoming Senate President Russell Pearce, R-Mesa, said returning to that system may be the best course of action.

He said the merit selection process was supposed to remove politics from the process of choosing who sits on the bench. But all it did, Pearce said, is shift the politics from the voting booth to a much narrower field of nominations by a special screening panel.

Rep. Eddie Farnsworth, R-Gilbert, who will be the chair of the House Judiciary Committee, said while direct election has a certain attraction, a more acceptable alternative might be to copy the federal system. That would allow the governor to choose whomever she or he wants, subject only to Senate confirmation.

Prior efforts to repeal the 1974 constitutional amendment have faltered amid stiff opposition from judges themselves. In fact, U.S. Supreme Court Justice Sandra Day O'Connor, who once was an Arizona state senator, has spoken out in favor of the system.

But what may drive the discussion this year is not the quality of the judges chosen but doubts about the selection process itself.

Under the current system, applicants for judgeships are screened by special panels.

The panels select at least three nominees, not all from the same party, with the governor having to choose from that list. Once appointed, judges run for retention, but don't have to campaign against an opponent.

What caused the renewed interest is the fact that the Commission on Appellate Court Appointments was subsequently given the additional task of screening applicants for the Independent Redistricting Commission.

During that process earlier this month, one of the appellate commissioners questioned whether an applicant who had cited his activities in a religious service organization could separate out the legal issues of church and state. That applicant, Christopher Gleason, was not among those whose names were recommended for consideration.

House Speaker Kirk Adams, R-Mesa, said that raises a number of questions.

"What are we to think in the commission's role in selection of judges?' he said.

"If a redistricting (commission) applicant can be targeted for his faith, could the same thing happen to an applicant for judicial office?' Adams continued. "And if this type of religious test is brazenly advocated in an open meeting, what happens in conversations behind the scenes where there is no public accountability?'

Adams said such questions amount to a "religious test' for public office, suggesting they would have a "chilling effect' on future applicants going before the appellate screening panel, causing them to hide their religious faith and religious affiliation.

"It certainly raised the issue of fairness in the process,' Pearce said.

Sen. Ron Gould, R-Lake Havasu City, who will chair the Senate Judiciary Committee, said he views the controversy as proving more support for people like him who don't like the current judicial selection process.

"I like the election of judges, personally,' he said. Gould pointed out that is the process that continues to exist in the 13 rural counties.

Gould acknowledged that election of judges on a statewide basis does present one specific problem: Money.

It would take hundreds of thousands of dollars, if not more, to wage a successful statewide campaign. And that would force judges to solicit funds from attorneys and others who might have issues that eventually could put them in front of the court.

He said that may be one place where public funding of candidates may be appropriate.

Farnsworth said the federal system of gubernatorial choices subject to Senate confirmation provides some "checks and balances' into the process, more so than he believes exists with the current judicial selection commission.

Such a change would have the backing of Gov. Jan Brewer. She has said she does not like the current restriction that limits her to choosing a new judge solely from the list sent to her by screening panels.

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