The Alligator in the Bathtub

Posted on February 16, 2006
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The February 2006 edition of Arizona Attorney depicts a courthouse set ablaze in “Fair Courts Under Fire.” In it, Ted Schmidt of the law firm Kinerk, Beal, Schmidt, Dyer & Sethi, defends the virtues of Arizona’s merit-based selection system for judges but the article overlooks a significant flaw in the system. 

Merit-based judicial selection commissions are used in counties with a population of more than 250,000. In counties with a smaller population, citizens still vote for judges. 

But Arizona’s merit-based system may not work as advertised. Each judicial merit commission is chaired by a sitting Arizona Supreme Court justice. That’s like placing an alligator in the bathtub--the justice’s preferences are difficult to ignore.  Giving the state’s most powerful judicial officers such an influential role turns the selection process into a housekeeping function of Arizona’s high court. 

The problem is that members of the commission, 10 public members and 5 attorneys, are often reluctant to vote against a sitting justice. Attorney members with career aspirations might not find it wise to vote against a justice’s recommendation and public members, with little knowledge of the judicial process, may be easily swayed by the powerful influence of a justice. 

In the end, judicial merit commissions should make choices based on the input and review of all the commissioners.  So, it’s legitimate to ask whether you can ever take a good shower with an alligator in the tub.

Key Links:

- Intellectual Conservative: “Inferno in the Courts”
- Arizona Attorney: “Fair Courts Under Fire”
-Arizona Supreme Court: “Merit Selection in Arizona”

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