Independent Judiciary is Under Attack – An Open Letter to LD 7's Senator and Representatives, Nancy Barto, David Burnell Smith and Heather Carter

Nancy, Heather, and David:

I wanted to bring to your attention my opposition to the efforts the Legislature is undertaking to alter the Arizona Constitution to eliminate the application and appointment scheme for Superior Court judges, in favor of having judges elected and/or having the Senate responsible for confirmations (instead of the Governor).  Plus, I understand that the Senate just passed a proposal to eliminate the State Bar altogether from the appointment process.   I am floored at that recent passing, for who is better qualified to assess judges than the lawyers who interact with them on a literal daily basis?

While I understand the desire of each branch to want to grab for as much power as possible, the independence of the judiciary is a wholly different entity than are the executive or legislative branches.  The judiciary functions differently and thus needs to be treated differently.  Requiring judges to run for office will change the qualification of being a smart jurist to being literally anyone who can afford to run a million dollar campaign. 

Most of our qualified judges do not come from wealth and would be unable to withstand the financial storm of a campaign.  Meanwhile, if we switch to elected judicial officers, the concept of independence amongst the judiciary will be a bygone…you can’t really think that the folks who donated heavily to a judge’s campaign will be forgotten when their issues appear before the bench.   And how many of these elected judges will be willing to be heroic in the face of political unpopularity?

Unlike policy makers at the Legislature and the Executive Office, whose decisions MAKE law in Arizona, judges simply apply and interpret law.  So, for lawmakers, it is sensible to have popular elections.  But for jurists, there is no gauge by which the public could objectively measure qualification.  Pardon my cynicism, but a change to popular election, or confirmation at the whim of the Senate will place our judiciary at risk of being usurped by any moron with a big wallet.  People with cash to spend on an election do so because they have a personal agenda.   For the sake of protection of all of our rights, you do not want judges with personal agendas.  A good jurist is professionally detached.  Elected judges won’t be.  And placing a judge at the whim of the Senate simply serves to chill the number of well-qualified applicants, due to nothing more than their political persuasion.  Judges should be above politics.

Nationally, Maricopa County Superior Court has consistently been recognized as one of the top court systems.  Maybe it is not perfect (what is?), but it works better than most other courts anywhere else in the country.  So why would the Legislature seek to destroy the very foundation of this institution…one of the few that works?     If the Legislature is displeased with some of the decisions coming from the Courts, and if this is a plan to punish or to change those decisions, I would suggest that the Legislature instead take the time to craft its statutes with greater care.  Better, clearer statutes lead to better, clearer outcomes in court.   Or, if this is a plan to load the courts with a sympathetic judiciary, ahead of a coming campaign of some truly controversial legislation, then ought you not ask why you would need to alter the court to get this legislation through?  If you need to change the referee to win the game, isn’t that called cheating?

David, I don’t know where you personally fall on this decision.  But, as a lawyer and former judge yourself, you can’t possibly agree with what the Legislature is attempting to do here.   Do you?  If you do, have you really thought this through?

So, I emphasize that I strongly oppose these proposed changes and hope that you do as well. 

Message sent by:

Gary Michael Smith, Esq.