Digging into the Ducey courts
Doug Ducey's legacy will ultimately include his record court appointments, so let's dive into it a bit.
Gov. Doug Ducey’s days as Arizona governor are almost over, but his impact on the state will last likely for decades for a number of reasons but a major one is his record number of court appointments.
Ducey is the first governor to serve two full terms since Bruce Babbitt left office in 1987 and by default would have appointed the most judges to the superior, appellate and supreme courts in the state.
But Ducey also infamously expanded the Arizona Supreme Court in 2016, despite the court urging him not to, and also just expanded both divisions of the court of appeals –– again despite literally anybody requesting it.
Adding to the long list of so-called “gaming the system” Ducey packed the judicial nominating commission not just with Republicans and right-leaning independents (while keeping Democrats either very minimal or nonexistent for some spurts) he appointed people closely allied to himself and his conservative principles.
For example, he appointed the wife of one of his staffers and likely future congressman, his former deputy chief of staff who now serves as the president and CEO of the Arizona Chamber of Commerce and has appointed other former staffers of his governor’s office, among many others over eight years.
If you’ve ever read my reporting while I was at the Arizona Capitol Times, none of this will sound new to you.
But there are two big reasons why I am writing about this today –– after taking most of last week off so I could sit back and watch election results come in and offer some tweets in the process.
Judicial appointments did not come up one single time during the campaign to replace Ducey as governor.
Neither Katie Hobbs nor Kari Lake were asked about what type of judges they would appoint if elected governor or how they would follow Ducey’s footsteps in a system he made sure to become an expert on very early in his tenure as governor.1
Chief Justice Robert Brutinel is likely going to retire once his five-year term is up in 2024 meaning Arizona could get a more extreme Republican on the top bench if Lake can find a way to pull off a victory; or Hobbs could potentially appoint the lone Democrat to the bench
Ducey is likely going to appoint his current general counsel to the court of appeals that he just expanded this year, even though she does not have any experience as a jurist and it’s clearly a huge conflict of interest.
Anni Foster, Ducey’s general counsel, is one of 15 candidates vying for a spot on the Division One Court of Appeals and a handful of Ducey allies went to bat for her to get one of three openings due to Ducey’s recent expansion.
I received public records from the Commission on Appellate Court Appointments (CACA2) of all the people who either recommended candidates or opposed them.
Some of the people who wrote on behalf of Foster were: Ducey’s personal attorney Brett Johnson of Snell & Wilmer; Department of Public Safety Director Heston Silbert, a member of Ducey’s cabinet; many former interns of Ducey’s office; a handful of Ducey appointees to state boards and commissions (likely political contributors to his campaigns as well, he tends to reward his supports with appointments); Nicole Ong Colyer, a former Ducey general counsel; and several others, which you can view in full here including of all other candidates. (There’s nearly 700 pages.)
Danny Seiden, Ducey’s former deputy chief of staff; sits on CACA and gets a say in Foster’s nomination –– they worked together under Ducey.
Laura Ciscomani is married to Juan Ciscomani, a former Ducey staffer and likely congressman in CD6 –– Juan and Foster worked together under Ducey. Laura is on CACA.
Buchanan Davis is another member of CACA and also another Ducey staffer who he recently just appointed to the Water Infrastructure Finance Authority.
The conflicts add up and the biggest one could be the fact Foster advises Ducey on legal matters, still works for him collecting a taxpayer funded salary all while trying to get her current boss to give her what amounts to be a practical lifetime appointment and a head start to a potential eventual Supreme Court appointment.3
Adding to the mix, Foster briefly ran for Maricopa County Attorney –– campaigning and speaking to donors, which carries a potential shadiness to becoming a future judge.
When Foster was rumored for Ducey’s unprecedented sixth Supreme Court appointment –– where he selected another former general counsel, Kate King –– a legal source told me it would be “super awkward” for Ducey to appoint his current counsel to the vacancy. Foster didn’t end up applying for that job, but the “super awkward” characterization still remains true, which is putting it lightly.
Lastly, voters in Maricopa County elected to remove three trial court judges from the bench which will likely fall to the next governor to replace through the state’s merit selection process once the election is certified given the process for appointments will take longer than Ducey has left in office.
Whoever is the next governor, which seems increasingly likely it will be Hobbs, will have plenty of court appointments to make over the next four years.
Update: I recently noticed one of the three judges Maricopa County voters chose to not retain on the bench is Rusty Crandell who is up for one of the Court of Appeals vacancies. Will be interesting to watch how this plays out since the commission sent his name as a candidate for Ducey to pick from. Would Ducey appoint a judge who voters deemed unfit for the judiciary?
Ducey’s general counsel and chief of staff met with experts on the court appointment process in March of 2015 to figure out how he can use the system to his benefit and boy did it work in his favor.
I think Arizona Agenda’s Hank Stephenson and I may have coined CACA in Yellow Sheet Report and it really stuck, which we both at one point said we regretted, but too late now.
Arizona judges have a mandatory retirement at age 70 so unlike federal judges they cannot serve into their 80s and 90s. Arizona Supreme Court Justice Clint Bolick will be the next of the current seven justices to turn 70 and be forced to retire opening up another vacancy, but that won’t be until Dec. 26, 2027 so it would fall to whoever wins the 2026 gubernatorial election to appoint his replacement.