Fate, court expansion give Ducey chance to reshape bench

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Gov. Doug Ducey’s two terms in office will have a lasting effect on Arizona’s courts.

Ducey, who is poised to claim a majority of Arizona Supreme Court appointments this year, is also on track to appoint more Arizona judges than any governor in the state’s modern history.

At the rate Ducey is appointing judges, he is poised to overtake the number of appointments made by former Democratic Gov. Bruce Babbitt, who appointed more judges than any other governor in the past 40 years.

And if casual observers think President Donald Trump will have a lasting effect on the federal judiciary with his two U.S. Supreme Court picks, consider this: Ducey is poised to make his fourth and fifth picks to the state Supreme Court this year.

By mere months into his second term, Ducey has appointed 59 judges to the state Supreme Court, the Court of Appeals and Superior Court in Maricopa, Pima and Pinal counties, according to data provided by the Arizona Supreme Court.

That’s nine appointments shy of the 68 judicial appointments Babbitt made during his nine years as governor. Babbitt was governor shortly after the state, through a ballot initiative, adopted the merit selection system for selecting judges — giving governors more power in appointing judges.

Babbitt was also the last Arizona governor to serve two full terms — a gubernatorial tenure that has been unequaled since. Likely until now.

Just after he won his re-election bid, Ducey promised to serve the full four years of his second term.

The longer Ducey stays in office, the higher the chances of more judicial retirements. But Ducey also has a couple other surefire ways to boost his number of judicial appointments.

He gets two appointments to the state Supreme Court this year. At some point in the future, Ducey will likely get to appoint judges to the Coconino County Superior Court after voters there approved a proposition to voluntarily switch to merit selection for choosing judges.

Now, when judges in Coconino County step down or retire, Ducey, as opposed to county voters, will get to select a replacement.

Babbitt is not the only governor in modern Arizona history to have appointed more judges than Ducey. Former Gov. Jan Brewer appointed 64 judges. Former Gov. Jane Hull appointed 67.

In talking to the Arizona Capitol Times, Ducey said he takes seriously his role in appointing judges.

“I’m only able to appoint a new judge when we have an opening or retirement,” he said. “It’s something that I have taken seriously and invested a lot of time to make sure that we’re putting justices and judges on the bench and not people that would like to be in the state Legislature.

“With four years left, we’re excited about what we can do to make sure we have the right people that continue to serve in the judiciary.”

Ducey chooses Supreme Court justices from a shortlist of candidates provided to him by the Commission on Appellate Court Appointments, which conducts interviews with all the candidates and pares down the applicant pool.

Douglas Keith of the nonpartisan Brennan Center for Justice said voters typically understand that when they’re voting for a governor or president, that person will wield the ability to appoint judges.

And without a doubt, chief executives understand that having a friendly judiciary can benefit their policies, said Keith, who serves as counsel on the Brennan Center’s Democracy program.

“We are seeing nationally that the executive branch, whether it be a governor or the president, recognizes the importance of these courts to their policy priorities,” he said. “They recognize the policies they may implement very likely will be challenged and so an important part of any policy strategy is going to be making any judiciary as friendly to them and to their favorite policies as possible.”

As Trump works to reshape the federal judiciary by appointing more conservative judges, state courts are becoming more important, Keith said. With a solidified conservative majority on the U.S. Supreme Court, litigants could instead turn to state courts to challenge legal matters, Keith said.

And the majority of cases still end with a state’s Supreme Court — making it unsurprising that governors are taking their state judicial systems so seriously, Keith said.

“There’s a lot of focus on the federal judiciary and President Trump’s record-setting pace in appointing judges, but the question of what’s happening in Arizona and other states is important because state courts hear 95 percent of all cases,” he said. “They are often the last word on matters folks tend to think of as U.S. Supreme Court issues.”

Ducey will make history this year when he appoints his fourth and fifth Supreme Court justices.

GOP consultant Kevin DeMenna compared Ducey’s Supreme Court appointments to a one-two punch.

Ducey, in 2015, pushed the Legislature to expand the court from five to seven justices, which gave the governor two Supreme Court appointments.

Then Ducey simply got lucky with the timing of Justice John Pelander and Justice Scott Bales’ retirements, DeMenna said. Pelander retired on March 1 and Bales, the court’s chief justice, will retire on July 31 once his chief justice term is up.

“Where this is now headed, in the age of the Federalist Society, in this era of crafting policy through considered judicial nominees, this is huge,” DeMenna said. “It’s kind of a double tap. The expansion of the court provided for two nominees and then the other tap is just kind of serendipity through retirements.”

The Federalist Society, a group of conservatives and libertarians seeking to reshape the country’s legal system, has gained national attention recently for playing a major role in the Trump nominations.

Ducey praised the Federalist Society for improving the judicial branch when he spoke at a March 16 Federalist Society event in Phoenix.

“The Federalist Society has now fixed the judicial branch. We need a Federalist Society for the legislative branch,” Ducey said.

With the growing prominence of the Federalist Society and Trump’s commitment to appointing proven, conservative judges, it would be hard for a Republican to avoid making a similar commitment to appoint judges who believe in a strict interpretation of the Constitution, Ducey said.

DeMenna recently compared Ducey’s judicial appointments to Trump’s success in reshaping the makeup of federal courts.

Trump’s two Supreme Court picks dominated the news cycle, but earlier this year, the president also smashed a record when he appointed a historic number of federal appeals court judges halfway through his first term.

“If you were to take the national dialogue around Trump reshaping the United States Supreme Court, it is not as profound. Adjusting for scale, it’s equally as epic, equally as seismic,” DeMenna said of Ducey’s state Supreme Court appointments.

Sen. Martín Quezada, D-Glendale, said Ducey’s soon-to-be unprecedented majority of state Supreme Court picks shows “the real danger of executive office politics.”

Ducey has had more influence over the state Supreme Court than any other Arizona governor, first because of the expansion of the court and now because of the sheer number of justices he has appointed to the court, Quezada said.

And the governor has lasting power in his judicial picks because often, the judges and justices he appoints, especially the younger ones, will serve far beyond his gubernatorial tenure, Quezada said. Arizona Supreme Court justices are eligible to serve until age 70.

“He’s really solidified the makeup of this court for far beyond when he will be a forgotten governor,” Quezada said.

What remains to be seen is the effect of Ducey being able to handpick a majority of the state Supreme Court justices, said ASU law professor Paul Bender. Much of that depends on whom Ducey appoints next.

“Even if you did know who he was going to pick, it’s not all that often that you can be certain or close to certain how a judge is going to behave on the bench by what you know about him ahead of time,” Bender said.

Ultimately, it’s unlikely that whomever Ducey appoints will spur drastic changes on the already conservative court, he said.

The state Supreme Court has a tradition of trying to issue unanimous decisions as often as possible so there’s a greater feeling of trying to reach compromises instead of disagreements, Bender said. That’s more easily accomplished at the state level because many of the cases the court decides are nonpartisan, he said.

“You have a court that’s already very conservative – it’s hard to see it getting more conservative,” Bender said.