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May 10th, 2024 Len’s Political Note #641 Support Progress America, Oppose retaining Bolick and Hackett King
2024 General Election
PROGRESS ARIZONA
Arizona was admitted as a state in 1912. Early in April, by a 4-2 vote, the Arizona Supreme Court ruled that an 1864 Arizona law that has been understood to criminalize all abortions except to save a woman’s life was enforceable. The law the Court supported far exceeded Arizona’s current statute which banned abortions after 15 months of pregnancy. The ruling further energized a movement to collect enough suggestions to add protection of abortions to the Arizona constitution.
One member of the court recused himself because he had written articles opposing abortion. Two members of the Arizona Supreme Court are up for a retention election in November. Both of them voted in the majority regarding the 1864 statute.
Many states use retention elections for judges. In Arizona, when a judge is first appointed, after he or she serves for two years, the judge (or justice) is subject to a retention vote. Yes or no. Will that judge remain on the court? If the answer is yes, an Arizona supreme court justice serves a six year term after which he or she is subject to a retention vote again. For that initial appointment in Arizona, the governor must select from a list offered by a bipartisan commission.
In 2016, Arizona’s supreme court was expanded from five members to seven. Governor Doug Ducey was seeking to ensure there would be a Republican Court. Clint Bolick, one of the two Supreme Court justices up for retention in November was appointed to the expanded court in January, 2016 by Governor Ducey. He was retained on the court in 2018 and is now completing a six-year term.
Kathryn Hackett King joined the Court in July, 2021, appointed by Governor Ducey. She completed her two years in July 2023. The first available election is November, 2024 when she will be considered for retention. If she is retained, she will be on the court for another six years.
If the voters choose not to retain one or both justices, the current governor, Democrat Katie Hobbs, will appoint the replacement. The replacement will face the voters in 2026.
Or not.
Republicans in the legislature are proposing to change how the state constitution deals with judicial retention. The plan is to limit retention elections to instances when a justice fails to demonstrate “good behavior.” Committing a felony or filing for bankruptcy or other indications of bad behavior would trigger such an election. Otherwise, appointments would be until the judge or justice reaches the retirement age of 70. The changed law would be retroactive – vitiating any decision not to retain a judge or justice in November of 2024.
There are flaws in the current retention law. Former State Senator Jonathan Paton, who is lobbying for the State Judges Association, explains that current rules prohibit sitting judges form soliciting funds to convince voters to vote in favor of retention. He further explains that the rules also prevent judges from speaking about or defending individual decisions. While sitting judges can respond to “false, misleading or unfair allegations,” otherwise they have to rely on “surrogates” to raise money for them or to speak on their behalf.
There is nothing inherently wrong with lifetime appointments for judges, modified, perhaps, by an age limitation. Some argue that judicial lifetime appointments is the best system. Federal judges have lifetime appointments. So do judges in many states. Lifetime appointments are intended to protect judges from political pressures. But changing systems and eliminating the results of a completed retention vote? The Arizona State Senate has passed the proposed constitutional amendment. The House is likely to pass it as well. The people of Arizona would vote on this constitutional amendment in November.
Would the voters of Arizona support a constitutional amendment that includes retroactively eliminating the results of their vote. They will probably get a chance, on November 5, 2024, to vote on whether or not to retain two Supreme Court Justices in their positions and, on the same day, vote on whether or not to eliminate the results of their retention vote. On that same day, Arizona voters will probably also have a chance to vote on whether or not to include protection of the right to an abortion in the Arizona constitution.
Arizona Republicans, having lost the governorship, having lost control of the Attorney General’s office by a narrow margin, and in danger of losing the House and the Senate, are working hard to maintain control of the state Supreme Court. After Doug Ducey’s careful expansion packed the Court in 2016, he has appointed every current member of the Supreme Court.
The organization Progress Arizona is serving as the principal repository of funds and coordinator for those opposing the existing state Supreme Court – both by opposing the constitutional amendment that would all but end retention voting and by opposing retention of the two justices up for a vote. A different group, Arizona for Abortion Access, is leading the effort to adopt the constitutional amendment to incorporate abortion rights into the state constitution.
I encourage you to donate to Progress Arizona. You should know more about the two state Supreme Court justices whose retention Progress Arizona is opposing.
Clint Bolick is from New Jersey – born in Elizabeth, grew up in Hillside. He went to Drew University, a private college in New Jersey. Then he went law school at the University of California Davis where he was becoming a libertarian. In law school, he spoke admiringly of the Brown v Board of Education decision, but opposed affirmative action. He ran for the California state Assembly as a Libertarian – getting 7% of the vote.
In 1982, he joined the Mountain States Legal Federation in Denver, but, along with the former acting president of the group, left complaining that the organization was pro-business, not pro-economic freedom. In 1985, he was appointed to the US Equal Employment Opportunity Commission. He lasted a year there, but made a friend. Clarence Thomas, he recalls, persuaded him of the importance of removing regulations that prevented the poor from starting small businesses. In 1986 he joined Dick Thornburgh’s Justice Department. While there, he wrote a book defining civil rights, in part, as removing those regulatory barriers for the poor and disadvantages. Removing regulatory barriers also helped those businesses the Mountain States Legal Federation sought to help.
In 1989, Bolick received a grant from the Landmark Legal Foundation to create a public advocacy law practice. The Landmark Center for Civil Rights’ first case was to represent a shoeshine stand owner’s attempt to overturn a law that prohibited bootblack stands on the public streets. Among other issues, he defended Wisconsin’s school voucher program. The Center for Civil Rights also spent some of its resources to pay the bus fare and some hotel costs for 45 people from Clarence Thomas’s home town to support him during his Supreme Court confirmation hearing.
In 1991, Bolick and his former boss from Mountain States created a new firm funded by Charles Koch which they described as focused on unjustified regulation, school choice, property rights, and free speech. They defended an Ohio school voucher program and won a case allowing interstate wine sales and shipments. Bolick led the opposition to Lani Guinier’s appointment as head of the civil rights division of the Justice Department.
In 2004, Bolick became president and chief counsel of the Alliance for School Choice – a merger of three pro-school choice organizations that was housed in Dallas. In 2007, he moved to Phoenix and the Goldwater Institute which created the Scharf-Norton Center for Constitutional Litigation which he led while also serving as a Vice President of the Institute. Among their efforts was prevention of public financial support for a walkable development in Phoenix, support for a tattoo parlor that the city of Tempe sought to close, support for the city of Tombstone’s use of heavy machinery to repair water lines that the federal government thought endangered the spotted owl’s habitat, opposition to Massachusetts’ prohibition of corporate political contributions, and support for a college football player who had been removed from his team and lost his scholarship because the college thought his publishing activities violated NCAA rules.
In 2016, Arizona Governor Doug Ducey appointed Bolick to the Arizona Supreme Court. His most recent decision on the Court was as part of the majority that ruled the 1864 law the made having or performing an abortion a criminal act was still enforceable. He is four years away from mandatory retirement and does not want his legacy to be damaged by not being retained in office.
Forty-three years old, Kathryn Hackett King’s experience is less extensive. After her 1999 graduation from the all-girls Xavier College Prep School in Phoenix, she left for Duke. She graduated in 2003 and returned home to the University of Arizona Law School. She got her degree in 2006. While in law school, she interned for US Senator from Arizona Jon Kyl. After law school, she clerked for a justice of the Arizona Supreme Court. She joined Snell & Wilbur right after law school in 2006, took a year’s break for her clerkship, then returned to practice labor law for Snell & Wilmer until 2014. She left to take a job as Deputy General Counsel for Governor Doug Ducey – from 2015 to 2017. Her time coincided with Doug Ducey’s expansion of the Arizona Supreme Court.
Hackett King left her role with the governor in 2017 – before the 2018 election season began. She spent four years a partner at BurnsBarton during which time Ducey appointed her as a Member of the Arizona Board of Regents. Having served as a regent for a year and a half, Hackett King was then appointed by Governor Ducey to the state Supreme Court in 2021. Her investiture as a Member of the Supreme Court was held at her old high school – Xavier College Preparatory School in Phoenix.
Should the Arizona legislature succeed in its effort to pass a constitutional amendment that would severely limit the role of retention elections, Kathryn Hackett King could look forward to more than 25 years on the Arizona Supreme Court regardless of whether or not she was retained in November.
DONATE TO PROGRESS ARIZONA. Help them achieve No votes on retaining Kathryn Hackett King and Clint Bolick. Give Governor Katie Hobbes a chance to appoint two new Justices of the Supreme Court. Help Progress Arizona scotch the Republican constitutional proposal that would all but eliminate retention elections and would invalidate the possible no retention votes for Kathryn Hackett King and Clint Bolick.
Here’s a footnote. The Arizona legislature, with one or two Republican defections in both the House and the Senate, has voted to repeal the 1864 statute, a repeal that Katie Hobbes has signed. That repeal will return Arizona to the state legislature’s previous prohibition of abortions after 15 weeks of pregnancy, but not right away. Because of the language of the Supreme Court decision upholding the 1864 statute, the repeal cannot go into effect until June 27.
Another Retention Election
Floridans make abortion protection part of Florida’s constitution and to support No on Retention until it is clear there is an organization focused on the anti-retention effort.
To oppose the retention of the two justices described below, until it is clear who is organizing the No on Retention Effort, donate to Floridans Protecting Freedom
Florida
Two justices who voted to keep Florida’s ban on abortions after 6 weeks and to prevent a constitutional referendum to protect abortions are up for a retention vote in November. The people of Florida will decide whether Justices Renatha Francis and Meredith Sasso will remain on the state Supreme Court. Both of these Justices voted to support sustaining the ban on abortions after six weeks of pregnancy and voted to attempt to prevent the referendum to give women in Florida to control their reproduction decisions – Question 4. DONATE TO YES ON 4 https://floridiansprotectingfreedom.com/donate/
Other State Supreme Court Judicial Elections
Georgia THIS ELECTION WILL OCCUR ON MAY 21
John Barrow
Currently, Georgia’s Supreme Court is 8-1 Republican. The Democrats have a serious candidate for the Court. Former Congressman, John Barrow, a well-known and well-liked moderate Democrat, who was Georgia’s last white Democrat in the House of Representatives, is running against a Republican incumbent member of the Court. DONATE NOW TO JOHN BARROW. See Len’s Political Note #630
North Carolina
Inc. Allison Riggs
After North Carolina changed how it elected Supreme Court justices so candidates were identified by political party, the Court shifted drastically. The voters elected Republicans and shifted the court from 6-1 Democrats to what it is now 5-2 Republicans. One Democratic Justice is up for election: Allison Riggs. She is behind more than 2-1 in raising funds to Republican Circuit Court Judge Jefferson Griffin who has been described as a potential conservative voice on the Court. DONATE TO ALLISON RIGGS. See Len’s Political Note
Michigan
Inc Kyra Bolden. Prof. Kimberly Thomas
Currently, there is a 4-3 Democratic majority on the Michigan Supreme Court. Two seats are up for election in November. Democrat Kyra Harris Bolden is an incumbent running for reelection. The other seat is held by Justice David Viviano who is not running for reelection. Kimberly Thomas, the head of the University of Michigan Justice Clinic is the only Democratic candidate. At this point, there are two Republican candidates. DONATE TO KYRA HARRIS BOLDEN. And also DONATE TO KIMBERLY THOMAS.
Ohio
Inc Michael Donnelly, Inc Melody Stewart, Court of Appeals Judge Lisa Forbes
Currently, there is a 4-3 Republican majority on the Ohio Supreme Court. Incumbent Democrat Michael Donnelly is up for election. He is opposed by a Court of Common Pleas Judge. Incumbent Democrat Melody Stewart is also up for election. She is being opposed by a Republican member of the Supreme Court, Joe Deters. If he ran for his own seat, because he was appointed to complete the term of a retiring justice, according to Ohio law, he would be running for a two year term instead of a six year term. Court of Appeals Judge Lisa Forbes is the Democratic candidate to complete the two year term on the Supreme Court. She is opposed by a local judge. DONATE TO MICHAEL DONELLY. DONATE TO MELODY STEWART. And DONATE TO LISA FORBES. See Len’s Political Note #613 and Len’s Political Note #614
Alabama
Circuit Court Judge Greg Griffin Sr.
Currently, Alabama’s Supreme Court is 9-0 Republican. The Democrats have a candidate for the open seat of Chief Justice of the Supreme Court. Current Circuit Court Judge Greg Griffin Sr. was a well-known and well-liked moderate Republican, but is now running for the Court as a Democrat. If he were elected as Chief Justice, he would be the only African American on the Court. He is unlikely to be elected. Aside from the obstacles he faces as a Black Democrat in Alabama, he does not have a campaign website to be found or campaign headquarters. For now, at least, if you would donate, send a check to his campaign at the Alabama Democratic Party, PO Box 950, Montgomery, AL 36101.
Montana
Ex Magistrate Jerry Lynch, District Court Judge Katherine Bidegaray
Montana has a 7 member Supreme Court. Its members have an 8 year term. Two of the current members were appointed by a Democratic governor. One was appointed by a Republican governor. Four were elected through Montana’s non-partisan process. Candidates go through a non-partisan primary that selects the top two for the general election. The Chief Justice seat is up for election as is one other. (In fact, Montana prohibits more than two seats being up for election in any single year.).
Chief Justice Mike McGrath, who is retiring, had run in Democratic primaries in the past. Justice Dirk Sandefor was supported by Democrats in his last run for the Court. He is retiring as well.
Two candidates are running for Chief Justice. 72 year old Jerry Lynch is a former magistrate for the US District Court in Montana. He described himself as a former plaintiff’s attorney representing, among others, victims of predatory lenders. 47 year old County Attorney Cory Swanson describes himself as a “tough on crime” prosecutor.
For the Associate Justice position, there are three candidates. Republican Governor Greg Gianforte has donated to County District Court Judge Dan Wilson. Former State Supreme Court Justice Mike Wheat describes this contest as between the “right wing” and the “right side.” On the “right side” is District State Judge Katherine Bidegaray. To create a little confusion, former state legislator and Republican Jerry O’Neil filed to run hours before the filing deadline. Both of the two principal candidates have appeal. Wilson refuses to be categorized for political purposes – explaining he will be a judge regardless of how the vote turns out. Katherine Bidegaray is the daughter of a Basque sheep farmer who came from the Pyrenees to Montana to “herd sheep and plow dirt.” She explains, her dad always told her not to “be a sheep.”
Kentucky
Pamela Goodwine
Kentucky has a 7 member court, each member of whom is elected to an 8 year term by district, rather than statewide. The 2024 vacancy exists in the 5th District due to Republican Chief Justice Laurence B VanMeter’s retirement. Pamela Goodwine, the Chief Court of Appeals Judge has been endorsed by a PAC supporting Democratic Governor Andy Beshear. She is opposed for this seat by Republican Attorney Erin Izzo. DONATE TO PAMELA GOODWINE.
