When we spoke on May 31 after (a reporter) attended Andrew Thomas' press conference at which he endorsed Proposition 115, (they) asked me to comment on his assertions about the judicial system in Arizona and Prop. 115. I was in Boston attending a conference at the time, and I said I thought Thomas' claim that the Arizona judicial system was "corrupt," was unsubstantiated and therefore irresponsible. With respect to Prop. 115 itself, I said that if it was a mere "tweak" to the current system of merit selection of judges which was approved by Arizona voters in 1974, it could do no harm.
I have since had a chance to review Prop. 115 in detail, and I must conclude it is more than a tweak to the system. In effect, it would replace the current merit selection of judges to the Arizona Supreme Court, Court of Appeals and the Superior Courts in Pima and Maricopa counties, with a much more political process under the governor's control. Under Prop. 115, the governor would choose not only the ten non-lawyer members of the screening panel, but also four of the five attorney members. Currently, the attorney members are chosen by the State Bar of Arizona. Prop. 115 also would require the selection panel to send to the governor the names of eight candidates for selection to a vacancy, up from the current three; essentially, this means that the names of most if not all who apply for a vacancy will be sent to the governor.
The measure would allow the screening panel, by a two-thirds vote, to send fewer than eight names to the governor.
In my view, the adoption of Prop. 115 would represent a retreat from the merit selection process adopted by Arizona voters in 1974. I do understand that some entities that are nominally supporting Prop. 115 are doing so because it is a less bad alternative to a proposal that would require Arizona judges to go through a Senate reconfirmation process every time their terms were up — thereby giving legislators a chance to critique each judge's decisions, and making each judge's reappointment dependent on whether the legislators agreed with that judge's decisions. I agree that Prop. 115 would be less bad than that alternative, but I think it would be a step backwards from the current system.
Myles V. Lynk
Professor of Law
Sandra Day O'Connor College of Law
Arizona State University
