Ducey signs off on new justices the Supreme Court didn't want

Doug Ducey

Doug Ducey

PHOENIX - Denying he's "packing' the court, Gov. Doug Ducey signed legislation Wednesday which will let him name two more justices to what until now has been a five-judge panel.

The governor said moving the bench to seven puts Arizona on par with states that have a similar or smaller population, including Nevada, Colorado, Washington and Wisconsin. And he argued that more justices will lead to more efficiency.

Ducey's move came despite unanimous opposition of every sitting justice on the court.

"Additional justices are not required by the court's caseload,' Chief Justice Scott Bales wrote directly to Ducey earlier this month. "And an expansion of the court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded.'

Ducey, in a letter explaining his decision, specifically rejected that contention.

"Some have said this bill is unnecessary, and that the court can handle its caseload just fine,' the governor said. "But I believe you'll hear a different story from the businesses and individuals facing litigation, who are in need of certainty.'

Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, said the issue is not that there's a delay in issuing rulings with a five-member court.

Instead, Hamer believes that a court with seven members will review more lower court rulings in civil cases - and issue more written opinions.

"When we talk about the certainty, the more written decisions that the court provides, the greater the understanding is of what the rules of the road are for business cases,' Hamer said.

As to charges he is "packing' the court, Ducey responded, "that's just wrong.'

He pointed out this is different than the federal system, where a president picks whoever he or she wants, subject only to Senate confirmation.

Instead, governors are required to make their selections from a list of applicants who have been screened and nominated by a special commission.

What Ducey did not say, though, is that the public members of that commission - two-thirds of the panel - are gubernatorial appointees, with the balance appointed by the State Bar of Arizona. While some public members are holdovers from prior administrations, Ducey himself already has named three of the 10 public members and has the opportunity to immediately name four more to succeed commissioners whose terms have expired.

The two new slots will mean Ducey choices will be in three of the seven positions. Earlier this year he tapped Clint Bolick, an attorney from the libertarian-oriented Goldwater Institute.

Rep. J.D. Mesnard, R-Chandler, who sponsored the legislation, argued that the expanded court promotes "good government.'

"I'm a strong believer in spreading power out, not concentrating power in the hands of a few,' he said during the debate. "More minds is better than fewer minds.'

But Sen. Steve Farley, D-Tucson, told colleagues this is not some innocent effort to hear more voices.

"The only reason why you would add justices to the court is to pack the court for political reasons,' he said. "This is the executive making a power grab over the judiciary. If you don't like the decisions the Supreme Court is making, you don't pack the court.'

Mesnard has conceded there's a political motive of sorts behind his legislation - or, at least the timing behind it. He said he pushed the measure because a Republican governor will be the one who will get to add two new justices.

"Separating the politics from the policy is impossible,' he told Capitol Media Services. "There's always going to be a political consideration. And if there were a Democrat on the ninth floor, that would be a political consideration that I would take into account.'

Ducey derided suggestions that expanding the court is at odds with his stated goal of streamlining and simplifying state government.

"Our goal is a state government that works for the people and that's efficient and effective,' he wrote. "I believe this bill is consistent with that objective.'

Ducey, in his letter explaining why he signed the measure, said he will not hold Bales' opposition to the expansion against him.

"He is of the utmost integrity and our court is in excellent hands under his stewardship,' the governor said. "Arizona is lucky to have such a qualified and thoughtful justice."