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You have the opportunity Nov. 7 to render a verdict on Arizona judges. In addition to the propositions and the candidates on your general election ballot, you'll be asked whether some judges should retain their seats on the bench.

Arizona offers judicial recall

Arizona has a historical desire for a strong, independent judicial system that is responsible to the people.

The framers of the state Constitution didn't trust an appointed judiciary and rejected lifetime terms, according to Toni McClory's book "Understanding the Arizona Constitution."

Arizona's populist Constitution, which was overwhelmingly approved by voters in 1910, included the recall of judges, which didn't go over well with the U.S. president at the time.

President William Howard Taft rejected Arizona's Constitution and delayed our state's admission to the union in 1911.

Taft, who didn't like Arizona's direct-democracy attitude, found recalling judges loathsome. Taft felt it would put "pressure on judges to make popular, rather than proper, decisions," according to McClory's book. Taft saw the potential for judges to be abused by special-interest groups. He favored impeachment over recall because the body of a judge's performance would be evaluated during impeachment proceedings, while single decisions could expose a judge to recall.

Always-resilient Arizona removed judicial recall from the state Constitution, resubmitted the document, which was approved, and became a state in 1912. Our state's voters promptly passed a constitutional referendum that re- instated judicial recall.

The state Constitution called for nonpartisan election of judges and term limits.

In 1974, our state adopted a merit-selection and retention system for Appellate and Superior Court judges in Pima and Maricopa counties. Superior Court judges and justices of the peace are still elected in smaller counties.

The merit-selection system takes much of the politics out of selecting judges. There is no campaigning, negative advertising or unqualified candidates running on platforms that are based on emotion or ideology rather than the law.

Under our state's merit-selection system, interested attorneys apply to a judicial-appointments commission when a vacancy occurs. The commission, in turn, sends at least three recommendations to the governor for appointment.

Merit was the criterion for forwarding a nominee to the governor until 1992, when diversity was added as a consideration. This diversity is not supposed to include party affiliation, and all of the nominees cannot be from the same party, according to "Understanding the Arizona Constitution."

The 1992 change also mandated that judicial-nominating commissions hear public testimony and that they take a public vote on the recommendations before forwarding them to the governor, according to the Arizona Supreme Court's "Guide to Arizona Courts."

It's not a pure, apolitical system — the governors tend to appoint judges from their own party. But not always: Gov. Jane Dee Hull, a Republican, crossed party lines in 1998 when she made her first state Supreme Court appointment, Democrat Ruth McGregor, who became chief justice in June 2005.

McGregor shared statistics with the Star last November showing that Supreme Court decisions do not split down party or ideological lines: From February 1998 through June 2005, there was one case out of 52 cases with dissents in which all judges of one party were in the majority opinion and all judges of the other party dissented. The case, "Bunker's Glass Co. v. Pilkington PLC," dealt with antitrust law and did not have overreaching public policy implications.

The people have their say on Election Day

The merit-selection judges face a retention election at the end of each term; however, voters can be confused by the length of the judicial-retention section on the ballot.

To help voters make an informed decision, the Commission on Judicial Performance Review evaluates judges' performance. The evaluations are available online and in the election publicity pamphlet. (See box on Page H1.)

The commission surveys those involved in the courtroom and proceedings, according to "Guide to Arizona Courts."

More than 13,000 attorneys, witnesses, litigants, jurors and staff evaluated the judges in this election cycle, Margaret C. Kenski, chairwoman of the Commission on Judicial Performance Review, told us in a letter to the editor.

The commission listed only the "satisfactory" or "better" percentages in the publicity to be reader-friendly and simplify reporting, according to Kenski. The detailed reports are available at www.azjudges.info.

Kenski explained that if a judge receives more than 25 percent "unsatisfactory" and "poor" responses, the commission kicks into an intense scrutiny of past and present evaluations. The judge may be asked to explain the poor ratings to the commission.

"There isn't any other good way to evaluate a judge's performance," said former Arizona Supreme Court Chief Justice Stanley G. Feldman, who is in private practice in Tucson.

Rulings by law, not politics

Rumblings of dismantling our state's merit-selection system bubble up almost every legislative session.

Returning to a popular vote or mandating Senate confirmation would increase the politicization of the judicial branch. A potential judge's politics and personal viewpoints could overshadow his or her understanding of the law.

"A judge can do something people are unhappy with and still have done the right thing under the law," Feldman said. Judges' rulings are based not on what is popular but on what the law requires, he said.

Arizona has a record of decisions based on law, not politics, as the Arizona Supreme Court study demonstrates. Placing "activist judges" on the bench — by election or Senate confirmation — to push an agenda of any party or ideology would dilute and diminish the judicial branch.

The merit-selection and retention system help keep the courts focused on the law, not the politics, of our state.

Groups that want to change the merit-selection system often say there is no way to remove judges from office. That's not true, said Feldman.

In addition to the retention vote as a judge's term ends, ways to remove a sitting judge between election cycles include impeachment and recall, on which our state's founders insisted.

In addition, Arizona's Commission on Judicial Conduct reviews complaints about judges and judicial officers. While the commission cannot investigate a judge's decision in a court case, it can impose private sanctions and recommend that the Supreme Court censure or even remove a judge.

The judicial-retention vote on Nov. 7 keeps the judiciary responsive to the public in our state's populist tradition. We hope you'll review the judges' performance and vote.