Judging Stanley

Justice Stanley Feldman has ruled the Arizona legal scene for years. But now he's gone. And Governor Janet Napolitano has some important decisions to make.

For the past 20 years, a liberal Jew from Tucson has had as much impact on life in Arizona as anyone.

While Republican governors were being impeached and indicted, while conservative legislators were whining about gay bowel disease and creating the alternative-fuels budget disaster, Arizona Supreme Court Justice Stanley Feldman was quietly and, once in a while, not so quietly affecting the state in much more profound ways.

From how contracts are interpreted to whether you can get into an emergency room to whether your boss can fire you, Feldman's court opinions about 400 in all have changed the law of this land. His administrative actions got rid of the good-old-boy system of selecting judges and gave more power to juries.

Jeff Newton
Clint Bolick of the Institute for Justice has great admiration for Stanley Feldman – even though he's happy to see him go.
Vivian Spiegelman
Clint Bolick of the Institute for Justice has great admiration for Stanley Feldman – even though he's happy to see him go.

Often with Feldman in the lead, the Arizona Supreme Court has repeatedly overturned the Legislature's decisions and made other rulings some might find surprising. It was the Supreme Court that forced the state to adequately fund public schools and ordered the state land commissioner to let environmentalists bid on grazing permits along with ranchers. A couple of years ago, it was the Supreme Court that allowed a young girl in the state's custody to go to Kansas for an abortion. And just last year the justices were the ones who said the government should pay for abortions for poor women with life-threatening medical problems like diabetes and heart disease. In one of his last actions on the court, Feldman joined his colleagues in giving judges the power to determine if materials produced in a lawsuit should be kept confidential.

Over two decades, you can trace Feldman's decisions to his defense of the little guy.

And although his vote was always just one on a court of five, people familiar with his actions agree that Feldman's intelligence and charm translated into far more power, and that his elegantly written opinions often carried far more weight than other opinions.

The casual observer of government in this state likely doesn't know much about the judge who never would have gone to law school if he'd been a better basketball player. But the lawyers and academics who do pay close attention to every ruling that comes out of the Arizona Supreme Court say the court is one of the finest in the country, and call Feldman, who stepped down earlier this month just shy of his 70th birthday and mandatory retirement, its crown prince.

Until recently, Clint Bolick watched the Arizona Supreme Court from afar. As an attorney with the Institute for Justice, a conservative/libertarian public interest law firm based in Washington, D.C., Bolick is a student of supreme court politics, both U.S. and state.

When it came time two years ago for IJ to open its first state chapter, Arizona was the choice in large part because the court was considered to be centrist with a high degree of integrity.

"We did not want to come to a state where the fix was in, either politically or ideologically, and we felt we would get a fair shake in the Arizona Supreme Court," Bolick says.

But then Bolick quickly admits that it didn't hurt that Feldman, widely considered a liberal, was close to mandatory retirement.

Now court watchers like Bolick are eagerly waiting to see who Governor Janet Napolitano will pick to take Feldman's place. After more than 10 years of Republican governors and conservative appointments to the court Napolitano will most likely pick a liberal Democrat.

But that doesn't mean she'll be able to fill Feldman's shoes.

"They'll never be filled," says Bob Myers, a longtime Feldman friend who recently left a Maricopa Superior Court judgeship to become chief of staff to Attorney General Terry Goddard.

"His chair will be filled. But his shoes will never be filled."

The answer to why Stanley Feldman is a champion of the little guy is simple. His considerable height aside, Feldman's got little-guy roots.

He doesn't come out and say as much. In fact, Feldman won't say much at all about his personal life and in some respects, even less about his time on the Arizona Supreme Court.

Feldman and his staff spent much of the past few weeks packing up his Supreme Court office in Phoenix where granddaughter Hannah's finger-paintings were among the last pieces of art to come down and getting settled back in at his old law firm in Tucson. During that time, he sat down for two lengthy interviews. He politely answered questions about his upbringing and early law career, volunteering few extra details.

When asked, he offered a list of his opinions that should be read, in order to understand his work as a justice but later refused to discuss the opinions. He refused to talk at all about anything that went on behind the scenes with his fellow justices during his time on the court.

What Feldman does want people to know is that he is passionate about the law and took his job as a Supreme Court justice very seriously. He considers himself a "constitutionalist" rather than a "liberal" or even a "populist," and says politics never entered into his decisions on the court.

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