Democratic presidential candidates are mostly tiptoeing around the idea of court-packing, toying with the idea of adding seats to the U.S. Supreme Court without committing to a real plan. But while 2020 hopefuls avoid endorsing such a scheme, Arizona Republicans have already enacted one: They not only packed their state Supreme Court but rigged the nomination process to ensure more favorable outcomes for the GOP. It’s just the latest example of Republicans capturing a state judiciary through the kind of brute-force politics that Democrats still shy away from.
These machinations, led by Arizona Republican Gov. Doug Ducey, may soon deliver a state Supreme Court seat to Maricopa County Attorney Bill Montgomery, a reactionary whose tenure has been plagued by scandal and lawsuits. Montgomery has fought against progressive reform at every turn. He is a fierce foe of LGBTQ equality as well as a staunch defender of the death penalty, the drug war, and mass incarceration. In 2015, he told a Vietnam War veteran that he was “an enemy” because he used marijuana, adding, “I have no respect for you.”
The prosecutor would seem to be a long shot for the position. Arizona’s Constitution, after all, has a built-in safeguard to prevent extremists like Montgomery from joining the bench. State Supreme Court justices are chosen by an appellate court commission whose members are selected by the governor and confirmed by the state Senate. The state constitution requires lawmakers to “endeavor to see that the commission reflects the diversity of Arizona’s population.” Pursuant to this command, the governor has long selected a mix of Democrats and Republicans for the commission, which puts forth a shortlist from which the governor must choose a justice.
Ducey, however, has taken steps to rig the judicial process in favor of ultraconservatives like Montgomery. First, the governor packed the court, adding two seats to swing it rightward. (Chief Justice Scott Bales declared at the time that the expansion was entirely unnecessary.) None of Ducey’s justifications for the court-packing plan have proved true: The court is now completing fewer cases, and while Ducey called for “more voices” on the bench, he has exclusively appointed men. The new “voices” come from male judges whose views align with Justice Clint Bolick, another Ducey appointee and an arch conservative who wants to demolish the New Deal.
Second, Ducey replaced several Democrats on the nominating commission with putative independents who, in reality, have deep ties to the Republican Party. Today, there are zero Democrats on the 15-member commission. Ducey appears to have altered the commission’s makeup with an eye toward elevating Montgomery. Earlier this year, when Montgomery applied for an open seat on the Arizona Supreme Court, the commission voted him down 7–5 after criticizing his lack of experience, his clear ideological bent, and his office’s culture of misconduct. Ducey promptly replaced Montgomery’s opponents on the commission with Republicans or Republican-affiliated “independents.”
When Bales announced his retirement in March, Ducey’s new commissioners did what they were likely appointed to do: They put Montgomery on the shortlist, effectively reversing the commission’s earlier conclusion that he was not qualified. Ducey has yet to announce his selection, but given that he and Montgomery are longtime allies, it’s quite possible that the prosecutor may soon wind up on the high court. After Sen. John McCain died in 2018, Bolick—in an unusual and improper move—urged Ducey to appoint Montgomery to the empty Senate seat. “I share your admiration of Bill. He is one of our finest,” the governor responded.
Many Arizonans would contest Ducey’s assessment of the prosecutor. Montgomery’s career has been defined in large part by startling cruelty toward minorities, especially LGBTQ people. After a federal court struck down Arizona’s ban on same-sex marriage, Montgomery refused to let his office provide free legal assistance to gay couples seeking to adopt children. State law expressly granted free legal assistance to married couples hoping to adopt, but Montgomery insisted that it could only apply to opposite-sex couples. To ensure that the state would not have to help same-sex couples, Montgomery then lobbied the Legislature to repeal this right altogether. He wished to revoke all couples’ right to such assistance just to ensure that same-sex couples could not receive it.
Montgomery is also a rigid foe of criminal justice reform. He campaigned against the liberalization of marijuana laws and wrongfully threatened lawful medical marijuana patients with felony charges. He has successfully blocked bill after bill seeking to reduce Arizona’s incarceration rate—one of the highest not just in the country, but in the world—by reducing sentences for drug offenders and rehabilitated prisoners. While Montgomery routinely insists that he wants to see more data before approving of such measures, he has concealed his office’s records and even sought to bar police from disclosing their own records despite a legal obligation to do so.
While Montgomery punished offenders as severely as possible, he allegedly went easy on a serial sexual harasser in his own workplace. In 2018, Montgomery’s office conducted an internal investigation into deputy Maricopa County attorney Juan Martinez, who had been accused of sexual harassment. At Montgomery’s request, the findings were sealed, closed off to the public, and Martinez received minor discipline in the form of “training.” In public statements, Montgomery downplayed the accusations and allowed Martinez to continue prosecuting cases.
A year later, the Arizona State Bar filed a formal misconduct complaint against Martinez, alleging that he sexually harassed multiple women—primarily clerks, but also court reporters. His alleged victims claim to have literally hid from Martinez to avoid harassment. This behavior appears to have been an open secret that Montgomery did virtually nothing to stop over the years.
Arizona is now awaiting the governor’s decision, which could come any day.
Ducey’s tactics reflect a broader conservative attempt to take over state Supreme Courts.
Florida Gov. Rick Scott spent his eight years in office preparing to drag the Florida Supreme Court far to the right. Like Arizona, Florida requires a judicial nominating commission to create a shortlist of nominees from which the governor can pick appellate judges. And like Ducey, Scott manipulated the composition of that commission, stacking it with Republican operatives. Scott even hatched a plan—more radical than conventional court-packing—to appoint three Florida Supreme Court justices after his term expired.
That plan failed after the court ruled that, no, a governor cannot make judicial appointments after the end of his term. But Scott set the stage for his Republican successor, Gov. Ron DeSantis, to flip the court. DeSantis inherited three vacancies, and the GOP-stacked nominating commission offered him a group of arch reactionaries to fill them. His three picks moved the seven-member court from a center-left to the far right, wasting no time reversing precedent as swiftly as possible. Key precedents protecting abortion access, the environment, gun control, voting rights, and capital punishment are now on the chopping block.
In the weeks before Florida’s 2018 gubernatorial election, it became clear that the race would determine control of the state Supreme Court for decades. Yet, oddly, Democrats barely noticed the contest’s impact on the court. Failed Democratic nominee Andrew Gillum rarely mentioned it. DeSantis, meanwhile, promised voters that he would select “constitutionally based” judges to the bench. “I think that the justices who are retiring have been justices that have not been in line with what a lot the faith community wants to see,” DeSantis told an evangelical audience. “I will appoint solid constitutionalists to the state Supreme Court and I think that will make a big difference.” It was not difficult to understand what DeSantis meant: The retiring justices—forced off the bench by age limits—voted to uphold abortion access; DeSantis’ justices would not.
It is a truism that Republicans care more about the courts than Democrats. This fact is typically raised in connection with the federal judiciary, as Republican voters are more invested in the nomination of conservative justices to the federal bench. The GOP-controlled Senate may not be passing much legislation, but it is pleasing the Republican base by confirming a slew of judges to important appellate courts across the country.
But state Supreme Courts are also quite powerful, vested with the authority to enforce state constitutional commands that are often broader than their federal counterparts. They also hear a number of cases involving the federal Constitution that never make it to SCOTUS. Many key ideological battles are playing out under the radar in these courthouses. In 2018, the Pennsylvania Supreme Court struck down the state’s congressional gerrymander and ordered new maps that no longer rigged elections for Republicans. The North Carolina Supreme Court may soon invalidate its state’s gerrymander, too. That court already blocked Republicans’ attempt to seize power from the Democratic governor, and it may soon take on racial bias in capital punishment. The Iowa and Kansas supreme courts recently found a robust right to abortion access in their respective state constitutions. The Alaska Supreme Court also affirmed that its state constitution bars restrictions on Medicaid funding of abortion—leading Republican Gov. Mike Dunleavy to cut the Alaska judiciary’s funding by the same amount the state pays to cover elective abortions under Medicaid.
Progressive voters, then, have a vivid illustration of what happens when an independent state judiciary steps up to defend constitutional liberties. And yet, in those states where voters elect their state supreme court, Democrats keep dropping the ball. In April, progressive Lisa Neubauer narrowly lost a Wisconsin State Supreme Court race to Brian Hagedorn, an anti-LGBTQ Republican, thereby expanding conservatives’ control of the court from 4–3 to 5–2. Republicans surged to the polls to support Hagedorn while Democratic turnout in key bastions like Milwaukee dipped from the previous judicial election. Democrats will not have an opportunity to flip the court until 2023. In the meantime, its conservative justices will allow the Legislature to seize authority from the Democratic governor and create a new, undefeatable GOP gerrymander.
At this stage, there is little Arizonans can do to keep Montgomery off the Arizona Supreme Court. But in 2020, plenty of state Supreme Court justices—including a majority of the Texas Supreme Court—will be up for election. So, too, will governors and lawmakers who play key roles in the composition of state supreme courts. Democrats ignore these races, and their vast ramifications for individual rights and progressive policy, at their own peril. When liberal voters ignore the courts, zealots like Montgomery slip into the seat of power.