Legal experts say new justice was a bold choice

By Jeremy Duda and Gary Grado
The Daily Record Newswire

PHOENIX, AZ — Security checkpoints slow even the most rapidly ascending people.

Clint Bolick, cutting it close Jan. 6 to the scheduled time to swear in as the state’s new Supreme Court justice, swept through the metal detector to gather his phone and wallet at the end of the conveyer belt before pivoting toward the elevator in the Executive Tower..

“Jeb Bush” flashed on his smart phone’s screen as the elevator doors parted at the reception-area of the Governor’s Office.

Bolick, breathless and with his wife at his side, accepted the Republican presidential hopeful’s congratulations as he checked in with the receptionist.

Minutes later, the swearing in delayed by a wait for the arrival of his four Supreme Court colleagues, Bolick took his Loyalty Oath and began his tenure as Gov. Doug Ducey’s first appointment to the high court. 

He replaced retiring Supreme Court Justice Rebecca White Berch.

Bolick, who embraces the term “activist judge,” although not in the sense that is usually decried by conservatives, beat out six seasoned appellate court judges. Many prominent Republican politicians endorsed him.

“The idea of an activist judiciary, in my view, is one that vigorously enforces constitutional rights. A court that doesn’t do that is basically leaving people who have constitutional rights with no remedy whatsoever. I don’t back off of that term,” Bolick said shortly after taking his oath. “I think the alternative of that is judicial abdication. A court that refuses to enforce constitutional rights is certainly much worse than one that vigorously enforces them.”

Legal experts say Bolick, who has no experience on the bench and is a registered independent, was a bold choice, and they expect him to continue a career-long advocacy of expanding rights under the Arizona Constitution.

Bolick, the former lead litigator with the Goldwater Institute, has built a career fighting against government rules, regulations and laws that he contends oppress the little guy. And when his efforts in the courts weren’t effective, he has taken his case to the Legislature and ballot box.

ASU law professor Paul Bender said the Arizona Supreme Court hasn’t seemed especially interested in developing rights under the Arizona Constitution, but Bolick might have an influence on changing that.

State courts are allowed to interpret state constitutions to mean broader rights for individuals than the federal Constitution, Bender said.

State courts generally end their analysis of constitutional issues at federal precedent, but the baseline for constitutional guarantees really begins at the state level. So state courts should give more consideration to what the state constitution means, Bender said.

“I think Clint understands that and will be interested in going back to the Arizona Constitution and seeing what it means independently of the federal Constitution,” Bender said.

He said Arizona Supreme Court Justices have rarely taken that approach, except for Stanley Feldman, a former Supreme Court justice who served for 21 years.

Feldman agreed that Bolick has a great understanding of the Arizona Constitution, which has a different history, intent and wording than the U.S. Constitution.

“I think he’ll feel that’s something that needs to be taken into consideration in every case where the issue arises,” Feldman said.

Bolick said he views his appointment as a new direction for the Supreme Court in the sense that he has “devoted more attention to arguing under the state Constitution rather than the federal Constitution, and looking at the distinct rights and opportunities that are protected by the Arizona Constitution.”

Bolick, who wrote the 2007 book, “David’s Hammer: The Case for an Activist Judiciary,” described himself as a “textualist” when it comes to the Arizona Constitution.

“I take the words of the Constitution literally,” he said. “When judges stray from the text of the Constitution and supplant their own ideas, like changing the words ‘public use’ into ‘public benefit,’ they’re amending the Constitution. That, to me, is beyond the scope of proper judicial action.”

The call from Bush was no surprise given that the two men co-authored a book entitled “Immigration Wars: Forging an American Solution.”

But Bush isn’t the only person in high political places Bolick knows.

When he and Ducey stepped toward each other for a handshake just before taking the oath, the two men had a well-established relationship. Bolick co-chaired Ducey’s transition committee on federalism and states’ rights. He was also Ducey’s choice to serve on the Arizona Industrial Commission, an agency that enforces and administers laws for the protection of employees.

And a long list of notables sent endorsements to Ducey or the Commission on Appellate Court Appointments, the panel that vets court applicants.

In a letter to Ducey, William J. Bennett, former secretary of Education for President Reagan, credited the Reagan administration with pioneering school choice and Bolick with helping “carry it over the line, not only in his writing and debating but in his litigating.”

Conservative political commentator George Will, who has spoken at Goldwater Institute events and has mentioned the organization in his syndicated columns, told Ducey that Bolick also has the ability to be a U.S. Supreme Court justice.

More Republican state lawmakers gave Bolick their endorsement than any other nominee. So did U.S. Sen. Jeff Flake, a former president of the Goldwater Institute, former U.S. Sen. Jon Kyl, and U.S. Rep. Trent Franks.

All of the other nominees – four Republicans and two Democrats – had endorsements from large law firms, colleagues, business executives and just a few politicians.

Ducey said the selection was not political.

“I was extremely impressed with the slate of candidates forwarded by the commission. Each of the Court of Appeals judges who were nominated would have made a great Supreme Court justice,” Ducey said in a written statement. “This appointment was a very difficult decision for me to make, which is a testament to the strength of Arizona’s judiciary.”

Michael Kielsky, chairman of the Libertarian Party and an attorney who has worked with Bolick on cases, said Ducey’s choice “was very courageous.”

“The safe choice would have been to just appoint somebody who already is a judge in the Court of Appeals,” Kielsky said. “That speaks really highly of the governor’s independence, that he’s willing to go beyond traditions and the safer choice.”

Kielsky said as an attorney he sees the choice as refreshing, rather than picking someone from the judiciary. Supreme Court Chief Justice Scott Bales, who was an appointee of former Democratic Gov. Janet Napolitano, also had no experience on the bench when he was chosen, and neither had Feldman.

Attorney Kory Langhofer, who clerked for the Arizona Supreme Court in 2006-07, said he doesn’t expect Bolick to be a rubber stamp for the political right.

Langhofer said he expects to see fewer unanimous opinions with Bolick on the bench, though he said he expects Bolick will ease into the role gradually because Bolick is a relationship builder.

He also expects Bolick to make his mark on the court by prodding his fellow justices to take a deeper look at cases and consider overruling lower court opinions.

“I think it’s true that he will put the government to the test more than the average judge,” Langhofer said. “I think it is a positive thing for judges to make the government prove its case and ask the government the tough questions. I expect that to be sort of one of his legacies.”