Could an Arizona Supreme Court retirement happen this year?

Could an Arizona Supreme Court retirement happen this year?

US Supreme Court Justice Neal Gorsuch (R), Arizona Supreme Court Justice Clint Bolick (center), and former Secretary of Defense Donald Rumsfeld (L) listen during an event hosted by The Fund for American Studies at Trump International Hotel in Washington, DC. (Photo by Alex Wong/Getty Images)

By Fourth Estate 48

July 2, 2024

This is the first part of a two-part story that began April 26 with speculation around Arizona Supreme Court Justice Clint Bolick potentially retiring from the bench before facing retention in November and a mandatory retirement in 2027. Read part two here.


Following its 4-2 ruling on Arizona’s territorial abortion law, the Arizona Supreme Court might confront a vacancy before 2024 concludes.

What would unfold next if or when another vacancy arises on the benchmarking its first since 2021? Let’s delve into that scenario:

New Chief Justice

There has been speculation that Chief Justice Robert Brutinel, a Republican appointed by Gov. Jan Brewer, would consider retiring following the conclusion of his five-year term.

This practice is customary, as demonstrated by Scott Bales, the last Democrat to sit on the Arizona Supreme Court. He retired after his five-year term as chief justice in 2019. His replacement, Republican Justice Bill Montgomery, was controversial.

Butinel’s term as chief justice ended June 30, but his term on the high court doesn’t expire until 2027. And, while Brutinel has not publicly disclosed his intentions, indications suggest he will likely remain on the bench at least for this year. In September of last year, he told The Arizona Republic that he would “probably retire sometime around 2025.”

When does the Chief Justice retire?

Staying on the court beyond the five-year term as chief justice is uncommon. Among Arizona’s past seven chief justices, only two continued serving on the court for more than a year afterward. Rebecca White Berch, who held the title preceding Bales, remained for 15 months, while Stanley Feldman served for five years following his tenure as chief justice.

Justices not staffing up

Typically, a telltale sign of impending retirement is whether justices hire law clerks for their final year.

Former Justice Bales revealed in 2019 that he refrained from hiring clerks for his final year to avoid committing them to a position that he might later vacate.

While Brutinel has hired clerks for the current year, he is not currently accepting applications for the next year’s class. A court spokesperson stated, “He has not decided if he will hire law clerks,” noting that Brutinel’s six-year term doesn’t conclude until 2026.

Out of the seven justices on the bench, five are presently undergoing the clerk interview process for 2025-26: Justices Ann Scott Timmer, John Lopez, James Beene, Bill Montgomery, and Kathryn King.

Neither Brutinel nor Justice Clint Bolick, a right-leaning independent appointed by Gov. Doug Ducey, are partaking in this process.

The rationale behind this decision remains unknown, as Justice Bolick has declined to comment.

What about the hiring of clerks for the current year?

“Justice Bolick has no comment.”

It raises suspicion.

An examination of an internet archive reveals that Bolick interviewed clerks at least for the current term, but his current website indicates he is not conducting interviews now.

 

 

Retention or retirement?

With a retention vote approaching in November, attention now centers on Bolick’s tenure on the court, where he has served since 2016.

At the outset of this year, much conjecture swirled regarding whether Bolick, the court’s senior member, might retire before reaching the mandatory retirement age of 70 in 2027.

Bolick has been a polarizing figure on the state’s court since his appointment in 2016. Hailing from the Goldwater Institute, he lacked prior experience as a jurist (one of three Supreme Court appointees of Ducey without requisite experience, alongside Montgomery and King), frequently attends events with apparent conflicts of interest, and is married to state lawmaker Shawnna Bolick, whose legislative decisions have sparked controversy.

The murky lines that divide the branches of government

Going back to 2018, there was the rumor that Bolick leaked the Invest in Education decision to Ducey’s office before the ruling came down. It was quite the scandal at the time. Bolick also notably texted Ducey encouraging him to appoint Montgomery to the U.S. Senate as John McCain’s replacement. This of course was revealed in a public records request.

Ironically, Justice Bolick voted in favor of upholding the territorial abortion law as the law of the land, but his wife a previously-ardent opponent of abortion will likely deliver the key vote in the Senate to repeal the 1864 law.

Could the Bolick-divide flip the legislature?

Bolick, who lost her bid for Secretary of State in 2022, was appointed to the State Senate in LD2, one of a few competitive districts. She will face an uphill battle to defeat State Rep. Judy Schwiebert in November. Schwiebert received more votes for the House when she was elected with Bolick in 2020 in what was then LD20. If the Dems can hold all 14 seats and flip this one, they will have a split Senate for the first time since 2001-02.

Ousting judges a rarity

Despite a turbulent campaign aimed at removing him from the bench, Bolick secured victory in his last retention election in 2018. Montgomery faced the closest retention election in state history in 2022 but managed to retain his position. Once again, efforts are underway to oust Bolick, as well as King, from the bench following their votes on the abortion ruling on April 9.

If Bolick retires before the ballot printing deadline, he:

  • Won’t be subject to a removal vote
  • Won’t appear on the ballot
  • Will initiate the process of appointing his successor.

If he remains on the bench throughout the year and faces another retention vote, Bolick could either be ousted by voters or secure retention until he reaches the mandatory retirement age of 70, at which point the winner of the gubernatorial election in 2026 will have the opportunity to make an appointment to the highest bench in Arizona.

A lifetime retention

There is a chance voters will also be asked to choose whether they want to repeal the retention elections all together which would be retroactive and undo any votes to remove judges from the bench. It would also mean Bolick would not have to retire at 70 and could serve as a “lifetime appointment” similar to the U.S. Supreme Court.

This article was originally published in Fourth Estate 48, a newsletter dedicated to government accountability in Arizona through public records.

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CATEGORIES: GOP ACCOUNTABILITY
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