When you think of Republicans who have prioritized judicial appointments, you think of Mitch McConnell and Donald Trump.

But a recent op-ed in Real Clear Policy points out that Gov. Doug Ducey has set the example for what a Republican governor can do to ensure a quality, conservative judiciary. 

This Governor Should Set the Republican Example on Courts

By Glenn Hamer
September 14, 2022
When you think of Republican officeholders who understand the importance of judges and policy, the first names that pop to mind are Mitch McConnell and Donald Trump. They indeed put great effort into populating the bench with conservatives.
But Gov. Doug Ducey of Arizona was implementing a comprehensive judicial strategy before the Trump-McConnell duo worked their magic. Given the potential of judges to make mischief with their decisions, Republican governors across the country would do well to emulate what Ducey has done over eight years. 
For years, the Arizona judiciary was a mish-mash. No governor put much energy into identifying judges with a coherent judicial philosophy. By the time Gov. Ducey took office, this had resulted in a State Supreme Court with a decidedly liberal bent.  
Ducey’s first step was to expand the state Supreme Court from five members to seven. The move had been anticipated by many – the court building was constructed to accommodate seven justices – and yet when the legislature approved the expansion there was a hue and cry, led by the usual suspects on the left, who claimed it was unnecessary. The real reason is that the Supreme Court served as a potential blockade for conservative, free market policies passed at the legislature, and a protector of liberal ideas advanced by out-of-state special interests in the form of ballot initiatives. 
The business community understood this reality. The Arizona Chamber of Commerce and Industry, which I served as president & CEO at the time, strongly supported the expansion of the Court. We stated: “By increasing access to civil justice, systemic efficiency, and the breadth of legal questions the Supreme Court has the opportunity to address, this important piece of legislation would allow the Court to better serve Arizona’s citizens and business community.”
Ducey’s second step was to ensure the Commission on Appellate Court Appointments was filled with people who believe in the rule of law, and feel that judges should not be legislators. The commission is Arizona’s “Missouri model” for selecting judges that makes recommendations to the governor about judicial appointments. Historically, this commission has played games by limiting the recommendations made to the governor, allowing them to tip the scale and infringe on the governor’s authority. No more. This changing of the guard on the commission was a crucial step in ensuring the governor had a steady stream of conservative choices.
Third was the actual appointments. Ducey sent a strong message with his first appointment to the Supreme Court – noted school choice advocate Clint Bolick, who had been a litigator at the Phoenix-based Goldwater Institute. Bolick’s selection was unconventional and a signal that Ducey was willing to consider people who previously would not have been selected. It set the tone for the rest of his appointments.
Ducey’s preparation for interviews with prospective judges was intense. He asked challenging questions to ensure that people shared his philosophy that judges should interpret the law and not legislate from the bench. Asked early in his tenure what surprised him most about being governor, Ducey said, “The amount of time I’m spending on judges. I didn’t expect it, but I’ve come to realize how important it is.”
Arizona has 171 merit selected superior court judges, 19 appeals court judges, and seven Supreme Court judges. By the end of his term, Ducey will have appointed 108 merit selected judges, more than 60% of merit selected judges in Arizona. And now that they’re in place, this year’s state budget gave a substantial pay increase to judges as incentive to stay on the bench instead of leaving for the private sector.
The kicker in all this is the diversity of Ducey’s judicial appointments, with record numbers of women appointed to the bench, minorities to the appellate courts and judges registered to political parties other than his own – something not even Governor Napolitano achieved. Currently almost 40% of his appointments are women – a record for any governor in state history – and his appellate court appointments have included five Hispanics, including the first two Hispanics ever on the Supreme court, the first Asian-Pacific Islander on the Court of Appeals and a judge that identifies as bi-racial. The Arizona judiciary is not an all-white-males club.
Nowhere has the influence of conservative justices been felt more than the all-important area of Ballot Measures. Given conservative dominance of the governor’s office and the legislature, ballot measures have become the preferred method for liberals to pass left-wing policy. For several election cycles now, out-of-state special interests – unions, tax increasers, environmentalists, so-called “election reform” advocates – have dumped tens of millions of dollars into the state to qualify liberal propositions for the ballot.
Historically the courts took a hands-off approach to ballot measures. Anyone who submitted a few hundred thousand signatures was virtually guaranteed to qualify for the ballot. It was so easy for courts to kick the can and just say “let the voters decide,” no matter how egregious the language or the process for submitting signatures was.  
Whereas Arizona truly was the Wild West, with its “anything goes” attitude on ballot measures, now the judiciary actually applies the law. The guard rails the legislature has put up to reduce fraud and ensure integrity in the initiative process are actually being enforced. The latest abomination to be kicked off the ballot – a grab bag of liberal policies masquerading as “election reform” – spares Arizona the potential ignominy of having some of the worst election laws in the country. Marc Elias will have to do his work elsewhere in 2022.

Ducey leaves office in January 2023, but one of his most lasting legacies will be the re-shaping of Arizona’s third branch of government. It’s gotten very little attention except for occasional howling from liberal critics, but in terms of ensuring good governance for years to come, and a stable, welcoming environment for job creators, it may be his most lasting achievement. Given the importance of the policy at the state level, other conservative governors would be wise to follow his example, in the process, providing a larger slate of quality judges for future Republican Presidents to appoint to federal and Supreme Court vacancies. 
Glenn Hamer is president & CEO of the Texas Association of Business. He ran the Arizona Chamber of Commerce and Industry from 2006-2021.
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