Group launches campaign to oust 2 Arizona justices over abortion ruling (2024)

PHOENIX — A political action group is launching a campaign to deny new terms to two of the state Supreme Court justices who voted to allow the 1864 law on abortion to once again be enforced in Arizona.

The organization, called Progress Arizona, is also gearing up to kill a Republican legislator’s proposal to strip voters of the right to decide whether to retain judges in office or oust them.

Supreme Court Justices Clint Bolick and Kathryn King, both appointees of former Republican Gov. Doug Ducey, are on the statewide November ballot for retention. Neither would comment on the campaign against them.

If voters remove them, a rare outcome, Democratic Gov. Katie Hobbs would name their replacements.

None of that would affect the high court’s ruling that the territorial-era law, which outlaws abortion except to save the life of the mother, trumps a 2022 law allowing the procedure until the 15th week of pregnancy.

But given that the abortion vote earlier this month was 4-2 — with Bolick and King on the prevailing side — allowing Hobbs to name two replacements could change the balance of the court.

The other two justices voting to enforce the 1864 law, John Lopez IV and James Beene, are not up for retention this year. Lopez is due to be on the ballot in 2026 and Beene in 2028.

In Arizona, Supreme Court judges are appointed by governors but stand for voter retention every six years.

However, the state Senate already approved a proposal by Sen. David Gowan, R-Sierra Vista, to ask voters to alter the system that now gives voters a regular chance to oust judges.

Instead, a judge or justice’s name would go on the ballot only if there had been some sort of incident, ranging from a felony conviction to personal bankruptcy, mortgage foreclosure, or if the Commission on Judicial Performance Review concluded their performance on the bench fell below standards.

And Gowan’s measure, if approved by voters in November, would be retroactive.

That means King and Bolick would get to keep their seats — even if voters in the same election decided they should not.

Retention or lifetime appointments?

Senate Concurrent Resolution 1044, approved by the Republican-controlled Senate on a 16-14 party-line vote, now awaits debate in the full House. As a ballot measure, it would bypass Hobbs.

This would be the first significant change in how judges are selected and retained since voters approved “merit selection’’ in 1974.

Prior to that, judges in Arizona were elected like all politicians. And that remains the case in counties of fewer than 250,000 residents.

Since 1974, for judges other than those in sparsely populated counties, when a vacancy occurs, applicants are screened by special panels who make nominations to the governor, who then must choose from that list. Voters then get to decide on a regular basis whether to retain or reject a request for a new term.

Only six judges have been ousted in all that time, none from the Supreme Court.

The Arizona Judges Association instead wants what would essentially be lifetime appointments, and retained former state Sen. Jonathan Paton to lobby for them.

Paton says most Arizonans are totally unfamiliar with the judges. He pointed out that in Maricopa County it is not unusual for the names of more than 50 Superior Court judges to be on the ballot.

The measure he got Gowan to sponsor would essentially create lifetime appointments — at least until mandatory retirement at age 70 — for any Supreme Court, Court of Appeals or Superior Court judge in larger counties unless they got into trouble and their names were placed on the ballot.

Gowan did not return calls seeking comment. But Paton said the proposal has nothing to do with the legal fight over abortion, pointing out it was filed in February, two months before the Supreme Court ruling. However, everyone was aware in February that a high court decision on abortion was pending after the justices heard arguments in December.

Paton defended the retroactivity clause that would override any decision by voters in November to turn King or Bolick out of office.

“The voters will decide if this is a good policy,’’ Paton said. He said having the change prospective only — meaning only those judges who would have to stand for retention beginning in 2026 — “doesn’t make any sense.’’

Voters “angry about this ruling”

Progress Arizona’s Abigail Jackson, however, said voters are entitled to have their say on judges — even if opposition is based on a single decision.

“Voters across the board are angry about this ruling,’’ Jackson said of the near-ban on Arizona.

“This decision is not in line with voters want,’’ she continued. “If Arizona voters want to use the power that the constitution gives them to hold them accountable, and their main concern is this ruling, then I think voters are within their rights and power to do so.’’

Anyway, she said, it’s not like Progress Arizona is making the court political, because she said it already was.

Jackson pointed out that there were just five justices on the Arizona Supreme Court until 2016. That is when Ducey convinced the Republican-controlled Legislature to expand the court to seven, a move that immediately gave him two appointments on top of the one he already had made.

Ducey argued the change was justified by the state’s population growth.

But Democrats said that explanation didn’t wash. They pointed out that, five justices amounted to one for every 1.3 million residents. By contrast, California, with seven on its high court, had one for every 5.5 million residents.

The 2016 law enabled Ducey to add Bolick, a registered Libertarian, and Republican Lopez. It also meant he named five of the seven justices; the two dissenters in the abortion decision, Chief Justice Robert Brutinel and Justice Ann Scott Timmer, were named by Republican Gov. Jan Brewer, his predecessor.

Only six justices decided the abortion case after Bill Montgomery, another Ducey appointee, disqualified himself.

The campaign by Progress Arizona puts Bolick and King in a difficult position.

While Progress Arizona can raise funds to defeat them — Jackson said she does not know how much that will take — Paton said the rules governing sitting judges prohibit them from soliciting funds to convince voters to keep them on the bench. Instead, only someone acting as a “surrogate’’ for them can raise money for a campaign.

Potentially more significant, the rules bar judges from speaking about or defending individual decisions. About the only option is the ability to respond to “false, misleading or unfair allegations’’ made against them during the campaign.

Paton said he did not know who would finance the campaign to convince voters to scrap the current way merit selection works.