On July 1 the Commission on Appellate Court Appointments (which provides a bi- partisan list of recommendations from which the governor chooses) opened the application process for candidates aiming to fill the two newly created justice seats. This past spring, Rep. J.D. Mesnard (LD 17 - Chandler-Gilbert) sponsored HB 2537 which proposed expanding the Arizona Supreme Court from 5 sitting justices to 7. In supporting this bill, Mesnard reassured Arizonans that this is simply an attempt to further distribute the concentration of power in Arizona’s highest court, as well as a way to alleviate the caseload of the current 5 justices.
Valid as this first argument may be, it is the second that should be called into question. When first announced, the sitting justices (Chief Justice Bales at the forefront) opposed this expansion, claiming, in fact, they were completely capable of handing the current workload, and that the funding needed for an additional two salaries would be better used to increase funding for the courts. This opposition was halted following agreements made that would both increase funding to the courts and raise the salaries of the justices by 3% over two years, making the cost of the court expansion about one million a year. Following these concessions, Gov. Ducey signed HB 2537 into law in late April.
Arizona Advocacy Network fought this bill all session. They argued that HB2537 would put partisan politics into the state Supreme Court for decades to come and would cost taxpayers an additional million dollars a year to maintain, but fixes nothing. It is a solution to a problem that doesn't exist.
Despite the arguments made by Mesnard for this expansion being “good government”, it seems to be following a current trend around the country. In other states, especially those with a highly conservative legislature, there have been successful initiatives to expand (and, in some instances, reduce) the size of their state supreme courts. Judicial monitors across the nation have taken notice of this wave of court augmentation and have been likening it to the “court- packing” attempt made famous by Franklin D. Roosevelt, wherein political allies are appointed on the basis that their decisions will fall in line with the desires of the administration.
Although the Commission on Appellate Court Appointments acts as a safeguard for this kind of extreme court-packing, Gov. Ducey’s appointment earlier this year of Libertarian Clint Bolick provides a glimpse into the future of Arizona’s Supreme Court. In addition to a long list of professional achievements, Justice Bolick brings with him a history of strongly conservative activism. A member of the Goldwater Institute for just under a decade, he has also co-authored a book on immigration policy with Jeb Bush, which provides a mainstream conservative position.
It is this heart-on-sleeve conservative politics which calls into question the motives of Gov. Ducey and friends (Mesnard has openly commented on how the Ducey administration has made him more “comfortable” in proposing this legislation).
More importantly, already ranked the nation’s 19th most conservative, this recent appointment, and upcoming appointments to the state supreme court, should prompt Arizonans to maintain a close eye and active voice throughout the proceedings. These appointments could easily quell progressive voices and movements all across the state.