3/7/2013 10:00:00 AM State may give governor more choices on judicial appointments
Howard Fischer Capitol Media Services
PHOENIX -- Ignoring a possible legal challenge, state lawmakers are moving to require screening panels to give the governor more choices for her picks for the Arizona Supreme Court, Court of Appeals and the superior courts of Maricopa, Pima and Pinal counties.
The state House earlier this week voted 34-24 to require that there be at least five names submitted for any vacancy. The measure, HB 2600, is now in the Senate.
A 1974 constitutional provision requires these panels to send the governor at least three names, with a prohibition against all of them being from the same political party.
But Rep. Justin Pierce, R-Mesa, said in the last four decades the governor making selections for the Arizona Supreme Court has gotten more than three names only twice.
Rep. Debbie McCune Davis, D-Phoenix, did not dispute that number. Nor did she argue with Pierce about the wisdom of giving any governor, Republican or Democrat, more choices.
She pointed out, though, that it was the voters who first approved the current judicial selection process and made it part of the Arizona Constitution. And that document, which can be amended only with voter approval, permits the selection panels to send as few as three names.
"That would lead me to believe that if we're going to make changes to it we have to refer this to the ballot,' McCune Davis said.
In fact, she noted, lawmakers did just that last year.
Proposition 115 would have amended the constitution to require that the governor get at least eight names. It failed by a margin of nearly 3-1.
Pierce conceded the point. But he said some of that opposition likely was because of another provision in the ballot measure which would have given the governor more control over who serves on the screening panels.
That, however, still leaves the question of the measure's legality.
McCune Davis said lawmakers cannot do through a change in the law what effectively amounts to an amendment of the Arizona Constitution. That would pave the way for a legal challenge that ultimately would have to be resolved by the state Supreme Court.
Pierce insisted legislators are on firm legal ground.
He pointed out that the legislation does have an escape clause: The panels can nominate fewer than five -- but only with a two-thirds vote concluding there are not five qualified applicants. He said that does not run afoul of or contradict the constitutional provision requiring at least three.
The outcome of Proposition 115 notwithstanding, Pierce said, the change makes sense.
"I believe the governor is the one who should be making the choices, not an unelected commission,' he said. Pierce said he believes there are more than three "highly qualified candidates' for every vacancy.
The concept has the support of Gov. Jan Brewer who supported last year's failed ballot measure.