Arizona native and retired Supreme Court Justice Sandra Day O'Connor teamed up with a University of Denver think tank to crusade against elected judges in favor of merit-based appointments.
While 13 of the more rural counties in Arizona elect Superior Court judges, the more populous counties of Maricopa and Pima have judges appointed by the governor after their recommendation by the Commissions on Judicial Appointments.
One problem with electing judges is the money it takes to run a campaign, according to Dallas Jamison of the Institute for Advancement of the American Legal System, the Denver group supporting "The O'Connor Judicial Selection Initiative."
"It's our opinion putting money into judicial elections is a bad thing," said Jamison. It gives the public the perception that "judges are for sale."
In 33 states voters elect judges. In many elections the voters don't know who they're voting for when they cast their ballots for judges, Jamison said.
"We did an interesting survey of voters on how they select judges," Jamison said. "They pick very blindly. It's leap of faith to think the public is very aware on the performance of judges and their courts."
In discussing the issue, Justice O'Connor told CNN, "This initiative is a matter of great importance to our country. The amount of money poured into judicial campaigns has skyrocketed, intensifying the need to re-examine how we choose judges in America. I believe it is our moral duty and obligation to restore the public's confidence in our judicial system."
Meanwhile, Robert M. Brutinel, presiding Superior Court judge for Yavapai County, believes the present system works well and that voters do know who they're voting for when they elect judges here.
"I like the electoral process," Brutinel said. "I like going to the voters and being accountable, generally. I've come to conclude the system makes a great deal of sense. In Yavapai County there's seven elected judges. The voters have an understanding of who we are and what we do, the decisions we make and what the community would like to see as a standard of justice."
Maricopa County has 94 judicial positions and another 58 commissioners, Brutinel said. The governor appoints those judges after the commission recommends them. Once the state appoints judges, the voters retain or reject Superior Court judges every four years and Appellate Court judges every six years. A Commission on Judicial Conduct also reviews and investigates complaints against judges.
"The result of that is, I don't know how you have an election in that context," Brutinel said, about Maricopa County. With so many judges it would be hard for voters to "make an intelligent decision."
If the 2010 census results show that Yavapai County has reached a population of 250,000, the county then would go to merit selection of judges. Brutinel doubted the county will reach that population in 2010, though, saying it lost people in the recent economic downturn.
A move is afoot to require that the State Senate confirm judicial appointments and that judges be reconfirmed after four years. O'Connor wrote a letter to the judiciary committee opposing that change, and the measure, sponsored by Sen. Jack Harper, R-Surprise, later died.
"The votes were not there in the Republican caucus for judicial appointment and Senate confirmation," Harper said. "So that bill that I believe would have affected Yavapai, as they're getting ready pass the threshold (250,000 people) where they'll have to appoint judges instead of electing them - that bill is dead."
"Unelected, unaccountable people on a commission will have a say in judges, rather than elected representatives in the Legislature for Yavapai County," Harper said.
Brutinel opposed Harper's bill, which he said would "politicize" the process of judicial selection.
"What the bill proposes is both confirmation and reconfirmation," Brutinel said. "So that every time you come up for re-election, you go back before the Senate Judiciary Committee so they can determine whether you deserve reappointment. I think it would force judges, or create the impression you would force judges to make decisions based on whatever party is control of the Legislature. So in making decisions you'd be concerned about the evidence but also concerned about whether you'd be reappointed. And I think that would destroy the judiciary. It would just be a disaster. Do you really want a system where the majority of the legislators, who come from Maricopa County, get to pick the judges in Yavapai County?"
Meanwhile, a recent Supreme Court decision, Caperton v. Massey Coal Co., set a new standard for recusal among elected judges and shone a spotlight on the issue.
In Caperton, the majority of the court held that a refusal by Justice Brent Benjamin of the West Virginia Supreme Court to remove himself from a case even though a group supporting his campaign received a $3 million donation raised the "probability of actual bias."
Brutinel called the decision "interesting."
"I liked (Justice) Scalia's dissent," Brutinel said. "In the Caperton case, a person with a fair amount of money got a $42 million judgment against him and decided that he wanted to influence the process, to get a different decision. He donated $3 million to a separate campaign committee, not to the judge. And that got that judge elected. The $3 million was more than all the other judges including the judge he wanted to get elected spent on their races. And the people on the other side of that case, the Capertons, asked the judge to recuse himself and there was a hearing about that. He declined. He said that he could be fair. And then the (West Virginia) Supreme Court reversed the case. And the judge was the deciding vote. I don't think anybody will tell you that that process looks good."
"So what's the bottom line?" Brutinel asked. "If I give $100 to a race, does the judge have to recuse himself? When does it become a due process violation? Are we going to have to litigate every single one of those? This is an endless source of litigation."
It's been about a decade since a contested judicial race occurred in Yavapai County, Brutinel said.
"The parties spent about $45,000 a side for a job that pays $145,000 a year," he said. Most contributions came from lawyers, he said. In Arizona the contribution limit for judicial campaigns is $380.
"If someone gave the maximum and they had a case before me, frankly, that would make me very uncomfortable," said Brutinel, who's running for re-election this year. "We're always concerned about the appearance of impropriety."
In recent years, Jamison said, there's been an "explosion of money from businesses, trial attorneys and unions" to judicial campaigns, prompting concern in the legal community, the judiciary and the general public.
The institute is actively working with Nevada to reform its process and a merit selection proposal will go before the voters there this fall.
"They are poised hopefully to reform their process," Jamison said. "They're the first state in 16 years to move from direct selection to merit selection."
"I think this is really all about is the feeling you should be able to enter any court and have an even playing field, not that the other guy would have some connections, some pull, or made some campaign contributions to the judge," she said. "It should be all about the law, not who did what for whom. Our concern is that politics has infiltrated these elections. A lot of states don't know there's another way to do it. They have attack ads and escalating amounts of money. We think there's a lot at stake."
