PHOENIX - Ignoring a possible legal challenge, state lawmakers are moving to require the governor be given more choices for who she can appoint to the Arizona Supreme Court, Court of Appeals and the superior courts of Maricopa, Pima and Pinal counties.
The state House earlier this week voted 34-24 to require at least five names be submitted for any vacancy. The measure, HB 2600, is now being considered by the Senate.
A 1974 constitutional provision requires these state screening panels to send the governor at least three names, with a prohibition against all of them being from the same political party.
But Rep. Justin Pierce, R-Mesa, said in the last four decades the governor appointing new Arizona Supreme Court justices has gotten more than three names only twice.
Rep. Debbie McCune Davis, D-Phoenix, did not dispute that number or the possible wisdom of governors having more options. But she pointed out it was the voters who first approved the current judicial selection process and made it part of the Arizona Constitution, which can be amended only with voter approval. And that document now permits panels to send as few as three names.
"That would lead me to believe that if we're going to make changes to it we have to refer this to the ballot," McCune Davis said.
That's what lawmakers did last year, only to be rebuffed by voters by a nearly 3-1 margin.
Pierce said some of that opposition likely was because of another provision in the same ballot measure which would have given the governor more control over who serves on the screening panels.
While McCune Davis said a law that effectively amends the Arizona Constitution will result in a legal challenge ultimately resolved by the state Supreme Court, Pierce disagreed.
He pointed out the legislation does allow the panels to nominate fewer than five, but only if two-thirds vote to say there are not five qualified applicants, so it does not violate the constitutional provision requiring at least three.
Voter rejection of a similar proposal notwithstanding, Pierce said, the change makes sense.
"I believe the governor is the one who should be making the choices, not an unelected commission," he said.
The concept has the support of Gov. Jan Brewer who supported last year's failed ballot measure.