(Update) Court packing scheme in Arizona


I posted about this earlier this month. The GOP war on the independence of the judiciary – court packing scheme in Arizona.

Screenshot from 2016-04-23 05:54:20

Tim Steller of the Arizona Daily Star writes Governor could ‘pack’ Supreme Court under bill:

Of course nothing is sacred in politics.

Why should the state’s highest court be any different?

And yet, there’s something unseemly about the deal moving through the Legislature that would add two seats to the state’s Supreme Court.

Three unseemly things, actually.

The bill would expand the court from five to seven justices even though no one on the court or recently retired from it is saying that’s necessary.

The bill is winning support via horse-trading: Basically, legislative leaders promise to restore previously cut funding and give judges raises if the Supreme Court will not oppose the expansion.

The bill would give Gov. Doug Ducey two more appointments, allowing him to effectively “pack the court,” as the old phrase goes, by naming three of seven justices in his first year and a half in office.

“The only reason I can see that would be a basis to increase the Supreme Court would be a political reason,” retired chief justice Charles “Bud” Jones told me last week. “There can be no other. It’s a court-packing arrangement for political influence.”

Jones, by the way, is a Republican, appointed by then-Gov. Fife Symington in 1996. I interviewed four of the last five chief justices — two Republicans, a Democrat and an independent. None supports the proposed change, though not all were as quick to find a political motive as Jones was.

But, of course, none is sitting in Scott Bales‘ chair. Bales, the Supreme Court’s chief justice, says that none of the current justices support expanding the court as a stand-alone deal, but if trading horses is what it takes to get necessary funding for the judicial branch, he’ll do it.

The deal struck with legislators would increase funding for the courts by about $10 million, $6 million of which restores money previously “swept” by the Legislature, $3 million for children’s dependency cases, and almost $1 million for tech upgrades. It would also increase judges’ salaries by 3 percent.

“I have agreed to support a package — suggested by representatives of other branches of government — that combines needed court funding, salary increases and two new justices,” Bales wrote in a piece for the Arizona Republic. “I did so because I think that on balance it would strengthen Arizona’s courts in administering justice.”

The idea of having to negotiate a “package” to simply meet the needs of an equal branch of government is what most bothers former chief justice Thomas Zlaket, a Tucson attorney.

“I like this chief justice, I have great respect for him,” Zlaket said. “I think it’s a bad idea for the court to negotiate this kind of a deal with the Legislature.”

“People seem to forget that this is an independent branch,” he said of the judiciary. “I don’t like the idea of having to negotiate and give a quid pro quo for what should be normal, fair government functioning.”

Zlaket, who served as chief justice for five years until 2002, was a Republican at the time and is an independent now. Fellow former chief justices Stanley Feldman, a Democrat, and Rebecca White Berch, a Republican, shared his concerns. And, despite their roots in different parties, they suspect the real motive is to win decisions more favorable to the Republican legislative leadership and to the governor.

* * *

“It’s an obvious political attempt by the governor to increase his political power by expanding the court and getting two additional appointments,” Feldman said. “This is an attempt to expand the court when the court doesn’t need an expansion.”

* * *

Nevertheless, Berch, who retired as chief justice last September, pointed out that the court functions well as it is, and she made the same accusation as Feldman, if more diplomatically.

“I don’t want to impute motive,” Berch said. “There may be those who think that if the court contained more friends, laws might be interpreted differently.”

Of course, the system doesn’t allow the governor to appoint just anyone, Scarpinato pointed out. He must choose from a slate picked by the Commission on Appellate Court Appointments.

But that commission has eight Republicans out of 13 members now. And more ominously, a bill passed last year gave the governor the right to replace those commissioners at will, even when their terms aren’t up. With that, he effectively gained control of the commission that gives him the names to pick from.

If you want to look for decisions the Legislature was unhappy with, look no further than the Supreme Court’s 2013 decision holding that the Legislature is obligated by a 2000 ballot measure to increase school funding annually. That’s the decision that led to a standoff between school districts and lawmakers and ultimately to next month’s vote on Prop. 123.

* * *

And if I were betting, I’d guess that Ducey will come as close as possible in future appointments to replicating Clint Bolick, his recent Supreme Court pick who, like, Ducey, is heavily influenced by the Koch Bros.’ emphasis on the “economic liberty” of corporations and the rich.

In a hearing March 16, Sen. Martin Quezada, a Phoenix Democrat, suggested that perhaps the two new seats could be added, but not until after the next gubernatorial election, or the one after that, removing the partisan concerns from the debate.

It seems like a good idea to me, but it was met with scoffs from Republican Sen. John Kavanagh and others on the committee[.]

* * *

[T]he effect of the bill, intended or not, would be to allow Ducey to put two more loyalists on the court and cement one-party rule across all branches of state government.

On second thought, to call it unseemly is probably too generous. It’s a power grab.

Republic columnist Linda Valdez reports that Chief Justice Scott Bales’ deal for more money for the judiciary referenced by Steller is unraveling. Now our lawless Tea-Publican legislators are just negotiating the price to own the court. Valdez: Chief Justice sold his soul to lawmakers, and he lost:

Chief Justice Scott Bales’ effort to horse trade with the Legislature is failing.

Arizona will be the loser.

You remember how the chief justice of the Arizona Supreme Court agreed to go along with an attempt to let Gov. Doug Ducey pack the court in exchange for about an extra $10 million in the courts’ budget.

The deal is falling through – at least the part that involves money to the courts.

Dave Byers, administrative director of the courts, sent an e-mail to the Arizona Judicial Council and Presiding Superior Court judges explaining how bad things are:

“As you know the Judicial Council had voted to support a ‘package’ that included vital budget needs for the court system and an expansion of the Supreme Court to seven members. The President of the senate would not agree to that package. . . .  As such the ‘package’ is stalled and may be dead.”

According to Byers’ e-mail, Senate President Andy Biggs has a scaled down “package slim” he’s discussing. Byers’s e-mail says the chief justice “has explained, there other critical court  budget priorities that need to be funded before he can agree to adding more justices to the court, a budget item that is not in any way critical for the courts.”

It’s a little late for that. Bales already agreed to expanding the size of the court. His mistake was expecting GOP lawmakers to honor his price.

When I asked Byers what the courts’ next move is, he told me by e-mail that “we continue to make our case with legislators.”

Good luck.

Arizona Court of Appeals Judge Patricia Norris, who was opposed to accepting what she calls “court packing” in exchange for needed funding, points to “damage to the judiciary by attempting to cut a deal.”

The judiciary could wind up with the “worst of both worlds,” she said.

An editorial in the Arizona Republic called the court packing plan “corrosive.”

Bales said the additional justices could not be justified based on need, but he insisted the deal was not the same as selling out. He also said the unneeded expansion of the court from five to seven members was not court packing.

“It is, in fact, an effort to pack the court,” says Norris. It would change the structure of Arizona’s high court virtually overnight.

It would assure that Arizona’s ruling Republican Party gains faster control over the third branch of government.

The chief justice should have kept it pure. He should have vigorously argued against the court packing scheme while making the case for needed funding increases.

Instead, he tried to cut a deal.

Once GOP lawmakers found out the courts could be bought, they started haggling over the price.

This is how our authoritarian Tea-Publicans operate. It is creeping fascism.


  1. The tactics of Ducey resemble those of tinhorn dictators in Thailand, Russia, Zimbabwe, and Turkey. Maybe Ducey can move to Cuba, they need a younger version of the Castros. Stack government institutions, get the power to purge those who disagree with you, ignore any contrary opinions, get rid of organizations who can disagree with you. Next local government officials will be told to keep quiet, universities and courts will be stacked with supporters and the voters will be purged or silenced. This is a very dangerous trend in this State. Ducey was not elected dictator, and those two arrogant knuckleheads, Gowan and Biggs are generals in the dictatorship. Wake up Arizona. Even their mouthpiece, the Arizona Repulsive finds it hard to accept their tactics. But arrogance knows no limits. Can you imagine if Napolitano did ANY of these actions what the backlash would be?

Comments are closed.