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.

Charles E. "Bud" Jones, now chief justice of the Arizona Supreme Court, was in private practice at the time the Wagenseller decision came down. He remembers how frustrated he was, although he now admits it wasn't such a bad opinion.

Jones refuses to discuss specific cases or events that have taken place since he joined the court seven years ago, but calls Feldman a "first-rate constitutional and legal scholar." He adds, "He is a very gracious individual. He has personal characteristics that are positive in every respect. He's always pleasant to work with."

Jones, a Republican Mormon, is considered far more conservative politically than Feldman. With the exception of Tom Zlaket, who also recently stepped down, most of the justices are conservative. And yet many court observers say it's a testament to Feldman's powers of persuasion that so many Arizona Supreme Court opinions in recent years have been either unanimous or 4-1.

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.

Paul Bender, a professor of law at Arizona State University and one of the foremost authorities on the Arizona Supreme Court, says of Feldman, "I've known a lot of judges in my life, and I don't know anybody other than William Brennan, on the U.S. Supreme Court, who had that ability to be enormously principled and really intelligent and yet be able to incorporate other people's concerns and what they do to forge a consensus."

There is one notable exception. Feldman never got along with his former colleague Fred Martone. Martone, who served on the Arizona Supreme Court for 10 years until leaving for a seat on the U.S. District Court, is widely considered brilliant. And very difficult.

"Fred was one of the few people . . . who Stanley had very little positive impact on, and vice versa," Bender says.

Many court watchers say it was a good thing that Martone left the Supreme Court, that he simply doesn't work well with others and is better off running his own court, as he is now.

Martone is obviously careful in describing his relationship with Feldman.

"I would say that it was a very challenging experience to work with Stanley. He had very strong views about most issues and so it was always plenty of work, working with Stanley, because he seemed to be personally and intensely involved in everything," he says.

"I think he was certainly a very competent judge. But we had a very, very different approach to judging and the role of the court."

That's all he'll say, explaining, "As a sitting United States District judge it really wouldn't be appropriate for me to comment substantively on a former colleague."

So did it get personal? "I think an honest answer to that question is yes, and you can see that in the opinions," Martone says.

That is true. Many Feldman and Martone opinions and dissents are peppered with assaults on the opposition.

Feldman says it was never personal at all. And that's all he'll say.

Even before Stanley Feldman's retirement, there have been signs that the Arizona Supreme Court was veering to the right.

Governor Jane Hull made three appointments to the court during her time in office. Hull did relatively well in terms of diversity: Two of her choices are women (Ruth McGregor and Rebecca White Berch), and Michael Ryan, a former trial judge, is wheelchair-bound.

But all are considered quite conservative, particularly McGregor, even though she is a registered Democrat. Observers point to a 2001 court decision, Merleen Lyneer Clouse v. State of Arizona, as proof that the previously centrist court was tilting even before Berch and Ryan joined it.

In the Clouse decision, authored by McGregor with Feldman writing the dissent, the court gave the government immunity in a case in which a family was terrorized their home burned and the matriarch killed by a man whom the plaintiffs say had been illegally released by the authorities in connection with a previous crime.

As it stands now, there are four conservatives on the court (including Chief Justice Jones, who was appointed by Fife Symington) and one vacancy.

Governor Janet Napolitano will have the chance to make at least two appointments: Jones turns 70 in 2005. First, of course, she must fill Feldman's seat.

Earlier this month, Napolitano's legal advisers sat in the front row as the Commission on Appellate Court Appointments interviewed six candidates for the court. The commission, chaired by the chief justice, first accepted applications last year, then narrowed the field from 10 to six.

The commission used to meet in secret; Feldman changed that. But the group still has the ability to meet privately in executive session if the members desire.

In December, when they narrowed the field, the commission spent about 45 minutes in executive session; little of substance was discussed in the public meeting. In the second meeting earlier this month, when the interviews took place, the group didn't vote to go into executive session, but again, little of substance was said. The decisions seemed predetermined, and the questions coming from the bipartisan group of lawyers and non-lawyers were by and large softballs, including the one Tucson attorney Tom Chandler asked Andy Hurwitz about whether he'd have time to continue on his softball team, if chosen to be a justice.

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