Siege Mentality

County Attorney Andrew Thomas is attempting to capitalize on a national trend by attacking local judges

Death wishes and threats aimed at local judges — such as ones in Internet comments against Timothy Ryan after Andrew Thomas and Dennis Wilenchik tried to have him removed in October (see "Power Play") — have occurred nationally.

For example, U.S. Supreme Court Justice Ruth Bader Ginsburg revealed last year an anonymous post in an Internet chat room to "commandos" aggrieved by Ginsburg's rulings and those of her court colleague at the time, Sandra Day O'Connor.

"This is a huge threat to our republic and constitutional freedom," the person wrote, referring to a High Court opinion interpreted as relying too heavily on international law. "If you are what you say you are, and not armchair patriots, then those two justices will not live another week."

Beyond the physical threats, judges around the nation continue to face impeachment attempts over decisions involving religious and moral issues.

In 2005, a judge in Colorado faced great criticism from the Religious Right after ordering joint custody to the mother and her former lesbian partner who had become a Christian.

Though an effort to impeach the judge led by the Christian Coalition of Colorado and a state legislator ultimately failed, the legislator later bragged to the Denver Post, "The judicial branch in the state of Colorado and around the country got this message, which was intimidation."

In the same case, a senior public policy director of the special-interest group Focus on the Family said, "When opportunities arise, we would like to impeach judges" who rule in favor of same-sex marriages or for abortion rights.

Other religious groups have disseminated questionnaires to judicial candidates around the nation. In Iowa last year, the consortium Iowans Concerned About Judges sent questionnaires to all jurists facing retention.

Among the queries was whether a candidate supported "a judge's choice to display the Ten Commandments in his or her courtroom." Another concerned the landmark Roe vs. Wade decision that recognizes the constitutional right to privacy — which includes abortion.

The questionnaire also asked the name of each candidate's church.

In response to the questionnaire, Iowa's chief justice wrote, "The public should be wary of voting for a judge who promises to rule a certain way." But the justice himself felt the need to respond for political reasons.

Another recent attempt at controlling judges has been the Congressional Accountability for Judicial Activism Act. It would allow Congress, by a two-thirds vote, to overturn any Supreme Court decision that invalidates a law on constitutional grounds.

The federal bill so far is languishing, but its conservative Republican sponsors have not given up hope.

Not everyone in Maricopa County is a flame-thrower like Andrew Thomas and Joe Arpaio. But there are plenty of like-minded political activists who abhor what they consider dangerous overreaching by judges.

Cathy Herrod, an avid Thomas supporter and the executive director for the Center for Arizona Policy, wrote last year that "policy organizations, elected officials, and citizens have watched with growing concern as state and federal judges enact public policy from the bench to the exclusion of the legislative and executive branches of government. Most frustrating in this process is that the judicial branch is largely cloistered from the influence of the electorate."

Efforts continue at the Arizona Legislature to change how the state's judges are chosen.

Andrew Thomas would like nothing better than to see the appointment of judges either controlled by a conservative legislative committee or elected by largely anti-immigrant voters.

Before 1974, all Arizona judges, including those on the appellate level, were elected (Superior Court jurists for four years and appellate judges for six years). Since then, judges in the state's two largest counties (Maricopa and Pima) have been chosen through a system called "merit selection."

It works like this:

Committees made up of lawyers appointed by the State Bar and non-lawyers appointed by the governor screen judicial applicants, and send three to the governor for appointment to each vacant seat. Only two of the three finalists can be of the same party as the governor, who then chooses one of them.

Superior Court judges in the two big counties and appellate judges statewide occasionally come up for retention on an electoral ballot, which simply asks for a yes or no vote by voters.

The thinking on keeping the state's 13 other counties as they were — judges still running for election (though they are unopposed more often than not) was that they are small enough in population that voters generally have a better idea of who's running.

No judge in Maricopa County has failed to win retention since 1974, including one convicted of a marijuana charge. Voters retained that judge, Phil Marquardt, by the narrowest of margins, though he resigned from the bench in 1990 after a second pot conviction.

Even its adherents agree that the merit system isn't perfect. Mediocre, uninspired judges have been retained for years, as most voters haven't a clue about who their judges are or what kind of job they are doing.

But Mike Dann, a former presiding Maricopa County judge who now lives in Virginia and writes extensively about judicial matters, says he often hears kudos nationally about Arizona's courts.

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