This year’s election that most implicates fundamental issues of American governance will not fill a legislative or executive office. And its importance is not primarily that it will either repudiate or reward dishonesty and cynicism in the service of factional grasping. Rather, Arizona’s judge-retention election will decide whether judges should be vulnerable to punishment if their punctilious application of a law annoys a self-aggrandizing interest group.
Two years after justices are appointed by the governor to Arizona’s Supreme Court, they must be voted on in retention elections, and subsequently in such elections every six years. This misbegotten procedure is an incentive for injudiciousness — for judges to consider public opinion while making jurisprudential distinctions and decisions. To their credit, Arizonans have never exercised their power to remove a justice of the state’s Supreme Court. This year, however, voters are being exhorted by the Arizona Education Association, the teachers union, and national allies to reject the two justices standing for retention.
The justices’ supposed transgression is that they stopped the union from benefiting from misleading voters with a meretricious wording of a ballot initiative. The wording might have been charitably ascribed to carelessness rather than guile, but it was suspiciously helpful to the union’s objective.
Last spring, Arizona teachers went on strike, winning from the governor a 20 percent raise by 2020. Then, in an attempted end-run around the legislature, the AEA supported Proposition 207, to get voters to directly increase taxes for education spending. Targeting affluent Arizonans, the measure, if passed, would have raised about $690 million annually, with 60 percent dedicated to teachers’ salaries. But the ballot language describing Proposition 207 was misleading about one matter and false about another.
The initiative would have almost doubled Arizona’s top income-tax rate from 4.54 percent to 8 percent on individual incomes above $250,000 and 9 percent on those above $500,000. But the ballot description falsely said this top rate would be raised by 4.46 percent, not the actual 4.46 percentage points, a substantial difference.
Also, since 2015, Arizona has had indexation of its tax brackets, so, for example, the bracket that used to cover incomes between $50,001 and $150,000 now applies to somewhat higher incomes. But the way Proposition 207 was written would have repealed indexation and the adjustments it had made since 2015 , effectively raising taxes on many people.
For these reasons, the state’s Supreme Court struck Proposition 207 from this November’s ballot. As of this writing, the court’s opinion has not been published, but a leak indicates that the court ruled 5 to 2, with the two justices — Clint Bolick and John Pelander — who are subject to a retention vote, in the majority. Both judges have stellar ratings from Arizona’s Commission on Judicial Performance Review. But the AEA, its carelessness and/or mendacity stymied, wants revenge and to send a message: Do not render decisions that anger a special interest with especially deep pockets.
Now, judicial elections of all sorts are congruent with today’s populist temper — “ Vox populi, vox Dei ” and all that. They are, however, always and everywhere, inherently inimical to judicial independence from political pressures. They are permanent and perverse incentives for judges weighing jurisprudential arguments to, as it were, glance over their shoulders at glowering and clamorous factions, and to trim their juridical sails to accommodate prevailing political winds.
Arizonans who are voting — early voting began on Oct. 10 — in the retention election should contemplate the recent spectacle involving the U.S. Supreme Court. The court has been sucked into the vortex of today’s bilious politics by a confirmation process that is not the court’s fault. But two days after Brett M. Kavanaugh was sworn in as a justice elsewhere, all nine justices made matters worse by allowing themselves to be props at a White House event — an end-zone dance masquerading as a civic liturgy — in which the president, with his knack for vulgarity and his eye on next month’s elections, issued a faux apology to Kavanaugh on behalf of no one in particular, but for the obvious purpose of making his base salivate for partisan score-settling. Might all the justices finally recognize how inappropriate it is for them to attend the annual political pep rally that presidents of both parties have made of the State of the Union address?
Arizonans can immunize their state’s judiciary from a downward stumble into politics. They can reject the attempt to punish two fine judges, and to intimidate others, for patently political purposes.