An Arizona group is campaigning to oust two Arizona Supreme Court justices, but a former justice cautions that voting them out could undermine the judicial system.
Justices Clint Bolick and Kathryn H. King, who both signed the decision upholding Arizona’s controversial 1864 abortion ban, are up for retention in November.
"When judges overstep, Arizona voters have the power through our constitution to step in,” Abigail Jackson, with Progress Arizona, told ABC15 on Monday. “This decision was incredibly devastating, and absolutely dangerous for so many of us.”
She said voters should use their ballot in November to “hold these justices accountable, especially as this decision was very out of line with what the majority of us want.”
But Andrew Gould, a former Arizona Supreme Court justice who also served as a judge in Yuma’s superior court and on the Court of Appeals, said the state has retention elections to make sure judges are competent and doing their job.
“It's not a system that is meant to kick judges out because people don't like their decisions,” he said. “That kind of defies the whole idea of the merit selection in the first place. We're trying to get the best judges that we can.”
The governor appoints justices to the Arizona Supreme Court. A nonpartisan commission evaluates potential judges and submits the names of at least three applicants to the governor.
Progress Arizona has launched a website asking voters to sign a pledge to vote “no” on Bolick and King. Jackson said the group will also be fundraising on the site.
“We hope to run a robust campaign to ensure that voters are aware that they have this power to hold the judges accountable, and to get them to commit to voting no in November,” she said.
Why Arizona judges don't campaign
Gould noted that the judicial code of conduct makes retention elections different from political campaigns.
“Judges don't campaign for retention elections. They sit for those,” he said. “They don't go out and go to events and raise money or have press conferences.”
Ethics rules prevent judges from fundraising like candidates for office and from talking about certain topics.
“And generally, it's anything that might come in front of the judge – which are the very things that people want to ask judges,” he said.
That means voters shouldn’t expect to see Bolick or King knocking on doors or otherwise campaigning like candidates for office.
“You want your judges removed from the political sphere,” he said. “You don't want them going to political events and cocktail parties if they have a lot of political people because you want them to maintain their independence.”
Few Arizona judges lose elections
No Arizona Supreme Court justice has ever lost a retention election. And the removal of judges at any level is extremely rare in Arizona. Voters have only ousted six judges in the 50 years since the state began holding retention elections. Five of those were Maricopa County judges; three of whom were removed in 2022.
Gould attributes this to the quality of the state’s judiciary, saying voters have respected it.
"They've been very satisfied with the judges we've had,” he said. “It's only recently that this idea of turning judges out on retention election has sort of gained traction.”
Jackson said Progress Arizona knows judges usually win retention but expects to prevail because voters care about abortion access.
“I think that there's a big appetite and attention being paid by voters to these justices in particular,” she said.
Gould warns that this could be the start of "a vicious cycle” in which justices are voted out based on their decisions.
“If you're successful in doing this, then there's absolutely nothing to stop a different group from doing the same thing at the next cycle,” he said.
The Commission on Judicial Performance Review evaluates justices and judges up for retention. Its reports will be posted on the commission’s website this summer.
If Bolick or King lose in November, Gov. Katie Hobbs, a Democrat, will appoint their replacements. All seven of the justices currently on the court were appointed by former Govs. Doug Ducey and Jan Brewer, both Republicans.
Justices site for retention two years after their appointment, and then every six years. However, they must retire at age 70.
