On Sunday, the local paper ran an editorial long on conceit but short on illumination. “Kick these judges off the bench” proclaimed the Arizona Republic’s Editorial Board. The Op-ed was a day ahead of its own news story declaring, “Arizona commission deems 2 judges unfit for bench.”
I reckon the paper’s commentators couldn’t wait to join the “Amen” choir hallelujahing two non-retention recommendations by Arizona’s Commission on Judicial Performance Review (JPR).
According to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”
So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.
But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standards used to evaluate judges.
Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.
“Everyone’s special . . . .”
For all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.
And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency1, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.
No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!
Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.
Nothing succeeds like self-congratulation.
In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”
While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.” Talk about understatement.
In 40 years, the scorecard is 99% get retained. Since 1974, only two judges have lost a retention election in Maricopa County. Also see research cited at “Job security means working for the feds or sitting for judicial retention elections”
Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.
“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2
Frankly, this “alternative assessment” is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.” Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.
That the Commission almost always fails to muster “Does Not Meet” standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play “Eeny, meeny, miny, moe” on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.
What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.
(1) Try searching for meeting minutes or judicial performance report data older than 4 years on the Commission’s website at http://www.azcourts.gov/jpr/NewsandMeetings.aspx?nt=4
(2) See Judicial Performance Review in Arizona: A Critical Assessment.
Berch, Rebecca White; Bass, Erin Norris // Arizona Law Review; 2014, Vol. 56 Issue 2, p353
Photo Credits: Rubber Stamp Stand, by Thamizhpparithi Maari at Wikimedia Commons;Robo Dwarf Hamster, by Sarah , Flickr Creative Commons Attribution; Stick figure – choosing, by Obsidian Soul by at Wikimedia Commons.