Above: Maricopa County Attorney Bill Montgomery, right, at a 2017 event with Gov. Doug Ducey. – Howard Fischer.
Democratic presidential candidates are mostly tiptoeing around the idea of court-packing, toying with the idea of adding seats to the U.S. Supreme Court without actually committing to a real plan.
Mark Joseph Stern explains at Slate, Arizona’s Governor Is Leading Republicans’ Quiet, Radical Takeover of State Supreme Courts:
But while 2020 hopefuls avoid endorsing such a scheme, Arizona Republicans have already enacted one: They not only packed their state Supreme Court but rigged the nomination process to ensure more favorable outcomes for the GOP. It’s just the latest example of Republicans capturing a state judiciary through the kind of brute-force politics that Democrats still shy away from.
These machinations, led by Arizona Republican Gov. Doug Ducey, may soon deliver a state Supreme Court seat to Maricopa County Attorney Bill Montgomery, a reactionary whose tenure has been plagued by scandal and lawsuits. Montgomery has fought against progressive reform at every turn. He is a fierce foe of LGBTQ equality as well as a staunch defender of the death penalty, the drug war, and mass incarceration. In 2015, he told a Vietnam War veteran that he was “an enemy” because he used marijuana, adding, “I have no respect for you.”
The prosecutor would seem to be a long shot for the position. Arizona’s Constitution, after all, has a built-in safeguard to prevent extremists like Montgomery from joining the bench. State Supreme Court justices are chosen by an appellate court commission whose members are selected by the governor and confirmed by the state Senate. The state constitution requires lawmakers to “endeavor to see that the commission reflects the diversity of Arizona’s population.” Pursuant to this command, the governor has long selected a mix of Democrats and Republicans for the commission, which puts forth a shortlist from which the governor must choose a justice.
Ducey, however, has taken steps to rig the judicial process in favor of ultraconservatives like Montgomery. First, the governor packed the court, adding two seats to swing it rightward. (Chief Justice Scott Bales declared at the time that the expansion was entirely unnecessary.) None of Ducey’s justifications for the court-packing plan have proved true: The court is now completing fewer cases, and while Ducey called for “more voices” on the bench, he has exclusively appointed men. The new “voices” come from male judges whose views align with Justice Clint Bolick [former Vice President of Litigation at the “Kochtopus” Goldwater Institute], another Ducey appointee and an arch conservative who wants to demolish the New Deal.
Second, Ducey replaced several Democrats on the nominating commission with putative independents who, in reality, have deep ties to the Republican Party. Today, there are zero Democrats on the 15-member commission. Ducey appears to have altered the commission’s makeup with an eye toward elevating Montgomery. Earlier this year, when Montgomery applied for an open seat on the Arizona Supreme Court, the commission voted him down 7–5 after criticizing his lack of experience, his clear ideological bent, and his office’s culture of misconduct. Ducey promptly replaced Montgomery’s opponents on the commission with Republicans or Republican-affiliated “independents.”
When Bales announced his retirement in March, Ducey’s new commissioners did what they were likely appointed to do: They put Montgomery on the shortlist, effectively reversing the commission’s earlier conclusion that he was not qualified. Ducey has yet to announce his selection, but given that he and Montgomery are longtime allies, it’s quite possible that the prosecutor may soon wind up on the high court. After Sen. John McCain died in 2018, Bolick—in an unusual and improper move—urged Ducey to appoint Montgomery to the empty Senate seat. “I share your admiration of Bill. He is one of our finest,” the governor responded.
Many Arizonans would contest Ducey’s assessment of the prosecutor. Montgomery’s career has been defined in large part by startling cruelty toward minorities, especially LGBTQ people. After a federal court struck down Arizona’s ban on same-sex marriage, Montgomery refused to let his office provide free legal assistance to gay couples seeking to adopt children. State law expressly granted free legal assistance to married couples hoping to adopt, but Montgomery insisted that it could only apply to opposite-sex couples. To ensure that the state would not have to help same-sex couples, Montgomery then lobbied the Legislature to repeal this right altogether. He wished to revoke all couples’ right to such assistance just to ensure that same-sex couples could not receive it.
Montgomery is also a rigid foe of criminal justice reform. He campaigned against the liberalization of marijuana laws and wrongfully threatened lawful medical marijuana patients with felony charges. He has successfully blocked bill after bill seeking to reduce Arizona’s incarceration rate—one of the highest not just in the country, but in the world—by reducing sentences for drug offenders and rehabilitated prisoners. While Montgomery routinely insists that he wants to see more data before approving of such measures, he has concealed his office’s records and even sought to bar police from disclosing their own records despite a legal obligation to do so.
While Montgomery punished offenders as severely as possible, he allegedly went easy on a serial sexual harasser in his own workplace. In 2018, Montgomery’s office conducted an internal investigation into deputy Maricopa County attorney Juan Martinez, who had been accused of sexual harassment. At Montgomery’s request, the findings were sealed, closed off to the public, and Martinez received minor discipline in the form of “training.” In public statements, Montgomery downplayed the accusations and allowed Martinez to continue prosecuting cases.
A year later, the Arizona State Bar filed a formal misconduct complaint against Martinez, alleging that he sexually harassed multiple women—primarily clerks, but also court reporters. His alleged victims claim to have literally hid from Martinez to avoid harassment. This behavior appears to have been an open secret that Montgomery did virtually nothing to stop over the years.
Arizona is now awaiting the governor’s decision, which could come any day.
You will not find this kind of substantive analysis in the state’s largest newspaper, The Arizona Republic fka The Arizona Republican. It’s resident GOP apologist, former flak for the “Kochtopus” Goldwater Institute and the Arizona Chamber of Commerce and Industry, Robert Robb, sniffs Bill Montgomery doesn’t deserve this kind of political hit job because “He’s a tough-on-crime guy.” Boo-freakin’-hoo, you propagandist.
The Republic’s Abe Kwok also cries “unfair!” to Bill Montgomery. If Bill Montgomery misses this appointment, Gov. Doug Ducey is partially to blame. It’s starting to look like The Republic is lobbying for reactionary Bill Montgomery, another reason not to buy this crappy newspaper.
Only The Republic’s designated liberal, E.J. Montini, gets it right: Not even President Donald Trump and the Republican-controlled Senate are better at court packing than Gov. Doug Ducey. Bill Montgomery is a pawn. Arizona Gov. Doug Ducey is the chess master:
Ducey is a chess master.
I said back in June that in terms of packing a court Ducey has outdone President Donald Trump.
He did it with a two-pronged strategy.
First, he got the Republican-controlled Legislature to add two seats to the a court, then filled those positions with judges aligned with his political agenda.
Then he politicized a supposedly neutral system for selecting judicial candidates, transforming the Commission on Appellate Court Appointments to make sure the only people who make it through the state’s supposedly neutral process are decidedly non-neutral candidates.
The candidates Ducey wants.
As an article by Jeremy Duda of The Arizona Mirror pointed out, there is no longer a single Democrat on the commission, though the governor’s responsibility is to make sure the commission “reflects the diversity of Arizona’s population.”
That’s become a joke.
And it might lead to Montgomery getting on the state Supreme Court.
But even if he doesn’t, it will be one of the other chess pieces under Ducey’s control.
Which includes all the pawns, knights, rooks, bishops, kings and queens on the board.
Back to Mark Joseph Stern at Slate:
Ducey’s tactics reflect a broader conservative attempt to take over state Supreme Courts.
* * *
It is a truism that Republicans care more about the courts than Democrats. This fact is typically raised in connection with the federal judiciary, as Republican voters are more invested in the nomination of conservative justices to the federal bench. The GOP-controlled Senate may not be passing much legislation, but it is pleasing the Republican base by confirming a slew of judges to important appellate courts across the country.
But state Supreme Courts are also quite powerful, vested with the authority to enforce state constitutional commands that are often broader than their federal counterparts. They also hear a number of cases involving the federal Constitution that never make it to SCOTUS. Many key ideological battles are playing out under the radar in these courthouses. In 2018, the Pennsylvania Supreme Court struck down the state’s congressional gerrymander and ordered new maps that no longer rigged elections for Republicans. The North Carolina Supreme Court may soon invalidate its state’s gerrymander, too. That court already blocked Republicans’ attempt to seize power from the Democratic governor, and it may soon take on racial bias in capital punishment. The Iowa and Kansas supreme courts recently found a robust right to abortion access in their respective state constitutions. The Alaska Supreme Court also affirmed that its state constitution bars restrictions on Medicaid funding of abortion—leading Republican Gov. Mike Dunleavy to cut the Alaska judiciary’s funding by the same amount the state pays to cover elective abortions under Medicaid.
Progressive voters, then, have a vivid illustration of what happens when an independent state judiciary steps up to defend constitutional liberties. And yet, in those states where voters elect their state supreme court, Democrats keep dropping the ball. In April, progressive Lisa Neubauer narrowly lost a Wisconsin State Supreme Court race to Brian Hagedorn, an anti-LGBTQ Republican, thereby expanding conservatives’ control of the court from 4–3 to 5–2. Republicans surged to the polls to support Hagedorn while Democratic turnout in key bastions like Milwaukee dipped from the previous judicial election. Democrats will not have an opportunity to flip the court until 2023. In the meantime, its conservative justices will allow the Legislature to seize authority from the Democratic governor and create a new, undefeatable GOP gerrymander.
At this stage, there is little Arizonans can do to keep Montgomery off the Arizona Supreme Court. But in 2020, plenty of state Supreme Court justices—including a majority of the Texas Supreme Court—will be up for election. So, too, will governors and lawmakers who play key roles in the composition of state supreme courts. Democrats ignore these races, and their vast ramifications for individual rights and progressive policy, at their own peril. When liberal voters ignore the courts, zealots like Montgomery slip into the seat of power.
The only way to stop this GOP corruption is to not vote for Republicans. Defeat every single one of them.
Contact the governor’s office and insist “no way!” on putting Bill Montgomery on any court. There are other better qualified candidates from which he can choose.