Want to pack your state’s Supreme Court? Well, Arizona has provided a model.
Arizona Republicans are about to get two more justices on the state Supreme Court thanks to a bill approved by the legislature and heading to Gov. Doug Ducey’s desk that will expand the court from five to seven members and allow the Republican Ducey to appoint the new justices.
The move is being called a naked power grab and an obvious example of court packing — an accusation seemingly backed by the fact that the five current justices have said there’s no need for additional justices. However, in a twist, the state Supreme Court ultimately backed the proposal when the legislature leveraged much-needed funding for the judicial branch to get the court’s support. Ironically, some of that promised funding has already been scaled back, while the new judges will cost the state about $1 million annually.
“This is just another example of people in power exploiting their power,” said Mark Harrison, the chair of Justice at Stake, a nonpartisan judicial watchdog group. “They can do it, so they’re doing it.”
The bill was introduced by Republican state Rep. J.D. Mesnard, who denies that it is politically motivated court packing.
“More heads are better than fewer heads, especially when it comes to interpreting laws and the constitution,” he told the Associated Press.
Supporters point to the growth in Arizona’s population to justify expanding the state’s top court, as well as the fact that other states have larger benches. The measure’s opponents, many of them in the judicial system themselves, say the workload remains the same and that funding for an extra two judges could be better spent elsewhere.
“It is a form court packing, which is to change the way the court operates, the balance on the court, through an immediate change in number of members on the institution rather than through the natural evolution of vacancy,” Patricia Norris, an appellate judge in the state, told TPM.
Chief Justice Scott Bales, who was appointed by Democratic Gov. Janet Napolitano, said in an op-ed that he and the other justices (the rest of whom are Republican appointees) opposed adding the judges in a standalone measure. However, he went on to support the expansion if attached to a spending increase that would raise salaries for all state judges by 10 percent and provide other funding for the judiciary branch.
The Arizona Judicial Council — a group of judges, court administrators, attorneys and public members that advise the judicial branch on policy issues — had voted to accept a deal that traded their support for the expansion in return for the pay hike and funding for other court programs, a vote that is now being criticized as a bad political move.
“We need to be funded and we should be funded,” Jerry Landau, the council’s chief lobbyist, told TPM. “How the legislative process works, not just here but in any state and in Washington, is a little bit more complicated than that, so that’s what we work with.”
Twice before in recent years, legislators have tried to expand the court in efforts that were opposed by the state Supreme Court and that eventually failed, and the Judicial Council seemed likely to oppose the latest expansion legislation when it was first proposed.
“Once they decided not to oppose it, it was hard to backtrack then,” Chris Herstam, a former lawmaker who also previously served on the council said. “They couldn’t make a united front from a judiciary standpoint and try to pick off some Republican senators who would have killed it.”
It’s hard to pinpoint a particular legal issue that motivated Republicans to increase Ducey’s influence over the court’s make-up, though some have pointed to redistricting challenges (the court ruled against his predecessor Gov. Jan Brewer in a redistricting case) as well as an opinion that found the legislature had been short-changing the state’s education system.
“If this goes back to court, there’s no guarantee the court will rule in our favor again, because the governor is adding these two new justices,” said Democratic Sen. Martin Quezada, referring to the education funding decision. Quezada called the move part of a larger campaign to “hold on to what I believe is a waning conservative majority in the state of Arizona.”
In a hearing for the court expansion bill, Quezada suggested it be amended so the next governor chooses the new justices as way of taking politics out of the legislation. Its sponsor admitted he would no longer be on board if a Democrat could possibly be choosing the new judges.
“If the shoe were on the other foot, I’ll just candidly say if there were different person appointing, I might feel less comfortable,” Mesnard said.
The measure’s defenders nonetheless deny that it is court-packing, pointing to the merit-based process by which judges are appointed in Arizona. A pool of names from which the governor can pick judges is collected by a commission that is made up of appointees of past and present governors.
The Supreme Court justice who Ducey has already appointed under the current system gives some sense of the direction the commission will allow him to take the court. The judge, Clint Bolick, is a hard right conservative cut from the cloth of Clarence Thomas (who is godfather to one of Bolick’s children) who was not a lower court judge before his appointment but rather the head of the legal department of the Goldwater Institute, a libertarian think tank.
“It’s not like Ducey wasn’t getting right away the opportunity to impact the court,” Herstam said. “This was just a brazen power move to give him two more picks very quickly.”
The funding the judicial branch asked for in exchange of its support ended up not being part of the bill but rather hashed out in larger budget legislation. Though the legislature is giving the court a lot of what it requested, some has been cut back– including the pay raises, which are now only 3 percent — and $8 million of the judiciary budget is being moved to the state’s general fund against the court’s wishes.
“I worry about the status of the court as an institution when they start bargaining with the legislature over funding,” Harrison said.
Correction: The initial version of this story wrongly said Chris Herstam is an attorney. He works at a law firm but is not an attorney. We regret the error.