BY LINDA BENTLEY | FEBRUARY 15, 2012
Recalling judges, a sticking point for Arizona’s statehood
Before President Taft would sign a bill granting the Territory of Arizona statehood, it had to eliminate the judicial recall from its Constitution
WASHINGTON – In 1910, the Arizona Territory was authorized to hold a constitutional convention at which it drafted a state Constitution, which was submitted to and approved by Congress.
However, on Aug. 15, 1911, President William Howard Taft, the 27th President of the United States, serving from 1903-1913, vetoed the statehood bill, calling the provision for recalling judges “pernicious and destructive.”
Taft wrote, “I return herewith, without my approval, House Joint Resolution No. 14, ‘To admit the territories of New Mexico and Arizona as states into the Union on an equal footing with the original states.”
He stated, “If I sign this joint resolution, I do not see how I can escape responsibility for the judicial recall of the Arizona Constitution. The joint resolution admits Arizona with the judicial recall, but requires the submission of the question of its wisdom to the voters. In other words, the resolution approves the admission of Arizona with the judicial recall, unless the voters themselves repudiate it.
“Again, judicial recall is advocated on the ground that it will bring judges more into sympathy with the popular will and the progress of ideas among people. It is said that now judges are out of touch with the movement toward a wider democracy and a greater control of government agencies in the interest and for the benefit of the people. The righteous and just course for a judge to pursue is ordinarily fixed by statute or clear principles of law, and the cases in which his judgment may be affected by his political, economic or social views are infrequent. But even in such cases, judges are not removed from the people’s influence.
Surround the judiciary with all the safeguards possible, create judges by appointment, make their tenure for life, forbid diminution of salary during their term, and still it is impossible to prevent the influence of popular opinion from coloring judgments in the long run. Judges are men, intelligent, sympathetic men, patriotic men, and in those fields of the law in which the personal equation unavoidably plays a part, there will be found a response to sober popular opinion as it changes to meet the exigency of social, political, and economic changes.”
Taft said if the recall will be rarely used, it will be rarely needed and asked, “Then why adopt a system so full of danger?”
He went on to say it is “a mistake to suppose such a powerful lever for influencing judicial decisions and such an opportunity for vengeance because of adverse ones will be allowed to remain unused.”
Taft also noted the people of Arizona, after becoming an independent state, even if the judicial recall provision were to be stricken from its Constitution, could reincorporate it in their Constitution after statehood.
Only after the constitutional convention reconvened to strike the recall of judges from its Constitution did Taft sign the bill approving Arizona as the 48th state.
And reincorporate the provision it did.
While it doesn’t appear to have ever been used, Arizona reinstituted the judicial recall into its Constitution during its first general election following statehood in 1912.