Arizona Governor’s Record-Breaking Court Appointments Highlight Commission as the Only Check on the Governor

Arizona Governor Doug Ducey (R) just made headlines for setting a new record of 71 judicial appointments, a milestone that has drawn attention to the Arizona Commission on Appellate Appointments. The Commission is the only check on an Arizona governor’s appellate court appointments, because Arizona lacks confirmation of judicial nominees by the legislature. The force of the Commission’s check depends on the number of nominees the Commission sends the governor. “The more names you [the Commission] give him the more it’s like he can pick whoever he wants,” said former Arizona State University law dean Paul Bender. “The commission is there for a reason, and it’s to narrow down the people so the governor can appoint the best people… When you start sending in five or seven names, that doesn’t work as well anymore.”

When an Arizona appellate court vacancy occurs, Art. 6, Section 37(A) of the Arizona Constitution requires the Commission to “submit to the governor the names of not less than three persons nominated by it to fill such vacancy,” but there is no maximum. In contrast, the constitutional maximum from supreme court nominating commissions is three in Colorado (Art. 6, § 20), Indiana (Art. 7,  § 10), Iowa (Art. V, § 15), Missouri (Art. V, § 25(a)), Oklahoma (Art. 3, § 4), and Wyoming (Art. 5, § 4). New York’s Constitution (Art. VI, § 2), does not specify a maximum for its highest court, the Court of Appeals, but its statutory maximum is seven. N.Y. Judiciary Law § 63(2).

Arizona’s legislature plays a role in selecting the Commission. Art. 6, § 36(A) of Arizona’s Constitution states that, the sixteen commission members

shall be composed of the chief justice of the supreme court, who shall be chairman, five attorney members, who shall be nominated by the board of governors of the state bar of Arizona and appointed by the governor with the advice and consent of the senate in the manner prescribed by law, and ten nonattorney members who shall be appointed by the governor with the advice and consent of the senate in the manner prescribed by law.

The same section continues to say that no more than three lawyer members and five nonlawyer members may be from the same political party. Similar rules of political balance apply to the commission itself. Art. 6, Section 37(A) says that no more than 60% of the nominees submitted to the governor may be of the same political party.

Arizona Gov. Ducey’s second term has seen the commission offer increasingly long lists of nominees. His recent appellate appointment of Cynthia Bailey came from a list of ten candidates, after the Commission only eliminated one applicant. In contrast, the average number of nominees submitted by the Commission in 2017 was six, and Ducey’s predecessor, Gov. Jan Brewer (R), only received lists of three nominees for all her Supreme Court appointments. This shift seems to have occurred after Gov. Ducey appointed five new members to the commission in 2017, leaving the panel with only Republicans and independents. Democrats, like state Sen. Rebecca Rios, argue that these appointments were “blatantly skewed.” She went on to say “[w]hen Gov. (Janet) Napolitano was governor, I think it's important to note that she, in fact, nominated seven Republicans” to the commission.

The governor’s increased freedom from the commission’s large slates manifested in 2019 when Gov. Ducey appointed Supreme Court Justice Bill Montgomery to the bench. After replacing the three retired commissioners who voted against nominating Montgomery earlier that year, the Commission unanimously approved adding his name to the seven-person finalist list in July.

Thanks to Arrian Ebrahimi for research assistance.