What is "merit selection" of judges?
Merit selection is a way of choosing judges through a non-partisan commission of lawyers and non lawyers that investigates and evaluates applicants. The commission submits the names of the most highly qualified applicants to the Governor, who makes the final selection. Two-thirds of the states and the District of Columbia use some form of merit selection to choose their judges.
Unlike the federal system, merit selection in Arizona is not a system that grants lifetime judgeships. Once Arizona judges are appointed, they must periodically stand for retention election, when voters decide whether to keep or remove them. Performance review is a way of evaluating the judges who seek to remain on the bench. A commission reviews the judges' job performances to determine if they are meeting judicial performance standards. The public uses the information provided from the performance reviews at the retention election to decide if the judges should remain in office. While a number of states use some form of performance review to evaluate their judges, Arizona also requires its judges to undergo a self-evaluation process.
Arizona voters approved merit selection in 1974. At that time, Arizonans voted to discontinue the popular election of appellate judges, Supreme Court justices, and trial court judges in the most populous counties. Three judicial nominating commissions were created to screen judicial candidates for nomination to the Governor for appointment (currently the Commission on Appellate Court Appointments, and the Maricopa and Pima County Commissions on Trial Court Appointments).
A constitutional amendment passed by Arizona voters in 1992 increased the number of non lawyer members on the nominating commissions, created the Commission on Judicial Performance Review to give the public information on the performance of judges, and opened all aspects of the process to the public. The amendment broadened public participation in selecting and reviewing judges.
Why did Arizona voters adopt the merit selection system?
The merit selection process promotes judicial impartiality and integrity because judges are not forced to solicit campaign contributions from, among others, attorneys who practice before them and people who might someday appear before them in court. In other states, judicial candidates have been forced to spend thousands, sometimes millions of dollars, to run an election campaign in heavily populated areas.
Merit selection has these advantages:
- Promotes Public Accountability -
Retention elections held under merit selection systems are an effective and appropriate means of holding judges accountable to the people. In addition to being subject to removal and other sanctions available for misbehavior by the Commission on Judicial Conduct, all merit system judges are regularly subject to removal from office by popular vote. By contrast, elected judges in other states can be removed by popular vote only if they are opposed in the general election. Since judges are frequently unopposed, the people often have less "control" over elected judges. Retention elections also allow the general public, bar associations and the media to focus on problems with a particular judge's performance, rather than on campaign rhetoric often heard in contested election campaigns. The Judicial Performance Review Commission assesses whether or not judges meet judicial performance standards through the collection of data and reports its findings to voters in the Secretary of State's Guide. The voters decide whether to retain the judges in office.
- Produces a Highly-Qualified Judiciary -
Merit selection judges are chosen from a large pool of applicants on the basis of their qualifications rather than on political signs and slogans. Qualified attorneys are often unwilling to risk their practices on the expensive effort that is required for election to office. Candidates who are unable to raise sufficient campaign contributions have less likelihood of winning office - no matter their qualifications. This results in a reduced field from which qualified candidates can be selected. Merit selection removes these barriers and also prevents qualified applicants from being screened out by political parties because of their lack of political credentials. Furthermore, it has the advantage of assuring that only qualified and competent applicants reach the bench.
- Fosters Impartiality -
Sometimes judges are required to make unpopular decisions in order to uphold the law. It is the job of the courts to make sure that the limits of power placed on each branch of government are observed. Judges who must depend on winning re-election to keep their jobs may be unable to remain impartial as they could be penalized by the voters for making one or two unpopular decisions.
- Encourages Diversity on the Bench -
An increased number of minorities and women have been appointed to the bench because merit selection encourages a larger pool of qualified candidates.
- Incorporates Representative Democracy -
Merit selection compensates for limited voter knowledge about, or interest in, even contested judicial elections. Under merit selection, a nominating commission, rather than the Governor alone, makes the initial determination of the applicants' qualifications. The majority of the commission members are non-lawyers appointed by the Governor with the approval of the Senate.
- Provides Continuous Improvement of the Judiciary -
Arizona's retention process includes a second important component, self evaluation. Midway through a judge's term in office, and again before a retention election, a judge meets with a team composed of one public volunteer, one attorney, and one judge appointed to assist the judge in setting performance goals. This makes self-evaluation and continuous improvement an integral component of the judiciary.
Why is the merit selection system only used to select judges for Coconino, Maricopa, Pima and Pinal counties?
The Arizona constitution provides that merit selection will be used to select judges in counties with a population greater than 250,000 people. At this time only Maricopa, Pima and Pinal counties exceed that population threshold. Other counties may choose to adopt merit selection by popular vote. When a county’s population exceeds 250,000 as documented by the U.S. Census, that county automatically enters the merit selection system. Coconino County's voters passed the measure to adopt merit selection in November of 2018.
Currently, Superior Court judges are elected in nonpartisan elections in all counties except Coconino, Maricopa, Pima and Pinal.
Are nominating commission meetings open to the public or are the nominees chosen behind closed doors?
All meetings are open to the public and all voting occurs in public session. Occasionally the commissions conduct a very brief part of a meeting in executive session, when two-thirds of the members vote to do so, to address sensitive information such as selection of the questions to be asked at interviews.
I am interested in applying. Can I contact one or more commission members before a vacancy to discuss the nominating process?
Yes, anyone who is interested in applying may contact any commission member with questions about the process. The commission rules encourage members to actively recruit qualified applicants and members often find that speaking with potential applicants individually or in group settings is a useful recruitment tool. However, the rules specifically prohibit any advance agreement to vote for a recruited applicant and also prohibit substantive communication with an applicant after an application is filed. At the same time, potential applicants should know that it is not necessary to have met with any commission member before applying in order to be considered.
Please contact us if you would like more information or to arrange for someone to speak with your group about the judicial nominating process.
What qualifications are the commissions looking for?
At a minimum, applicants must meet the residency, age and legal practice requirements established by law. The criteria considered by all commissions include integrity, legal knowledge and ability, professional experience, judicial temperament, communication skills, diligence, public service and impartiality. As an example, when looking at an applicant’s temperament the commission members evaluate the applicant’s common sense, compassion, decisiveness, firmness, humility, open-mindedness, patience, tact and understanding.
The Arizona constitution requires that the commissions consider the diversity of Arizona’s population when making nominations. While the constitution directs that merit shall be the primary consideration in making nominations, the commissions take the additional directive to consider our population’s diversity very seriously.
The commissions that nominate judges for the Superior Court also consider an applicant’s trial, mediation and administrative experience. A trial court judge must speak effectively in order to be understood by the people appearing in court and by jurors, so the commission evaluates the applicant’s ability to express legal concepts using plain language.
The commission that nominates judges for the appellate courts also evaluates the applicant’s research, writing and interpersonal skills. Because of the decision-making process in the appellate courts, it is important that those judges be able to give and receive criticism of opinions and arguments without giving or taking personal offense. The commission considers an applicant’s demonstrated ability to produce well-reasoned and understandable opinions.
As an applicant, should I have my references write or call the commission members?
The commission welcomes and needs written assessments of an applicant’s skills, expertise, ethics and any other characteristic relevant to an individual's potential for a judgeship. Many applicants solicit letters of reference supporting their application. However, applicants are advised "more" is not necessarily "better." The commissions feel that ten to twelve substantive letters of reference are usually adequate to give the commission an insight into what others think about the applicant.
Letters about applicants should be sent to the commission in care of the Human Resources Department, Administrative Office of the Courts, 1501 W. Washington, Suite 221, Phoenix, AZ, 85007, as opposed to individual commission members. Written comments can also be sent to [email protected]. All letters and comments timely sent to those addresses will be forwarded to all commission members.
The commissions also welcome telephone calls to individual members from citizens who can provide candid insight into an applicant’s qualifications. Please see the commission membership lists for direct contact information for each member.
Applicants should not personally contact commission members about their application during the nomination process. The commission rules prohibit members from individually interviewing applicants or committing in advance to vote for any applicant.
How can citizens participate in selecting, reviewing and voting on judges?
• Encourage highly qualified people to apply to serve as a judge.
• Volunteer to serve on a judicial nominating commission. Applications are available from the Governor's Office when volunteers are needed.
• Send your comments on applicants being considered for judgeships to a Judicial Nominating Commission.
• Volunteer to serve on the Commission on Judicial Performance Review (JPR) or a JPR Conference Team.
• Complete and return a judicial performance survey when you are in court as an attorney, juror, litigant or witness during the survey period.
• Send your comments on a judge's performance at any time to the JPR Commission.
• Be an informed voter. Read the findings and report of the JPR Commission before you vote in retention elections.
What information is available to the public about the people who apply for a judicial office?
All applications received by the commissions are posted on this website. They are also available for public review during business hours at the Administrative Office of the Courts, Human Resources Department, 1501 West Washington Street, Suite 227, Phoenix, AZ, 85007.
A small section of each application containing personal, family and reference information is kept confidential for use only by the commission and the Governor.
Can a member of the public contact the commission or an individual member to offer comments about an applicant?
Citizens familiar with an applicant are encouraged to share their comments with the commission via this website, or by sending an e-mail to [email protected] or a written comment to the commission in care of the Human Resources Department, Administrative Office of the Courts, 1501 West Washington Street, Suite 227, Phoenix, AZ, 85007.
The nominating process operates best when a full range of information is available to commission members. Members spend significant time contacting people in the community, lawyers and judges to discuss an applicant’s qualifications. The commissions also welcome unsolicited comments. The commission rules do not allow members to accept anonymous comments, but members can assure confidentiality in those limited cases when it is appropriate, such as when the comment is about a supervisor or a colleague.