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Underhanded attack pushes single agenda

Alex Bryner

Barely two weeks before next Tuesday's election, a special interest group with a nationwide agenda and big pots of Outside funding launched an attack against Alaska Supreme Court Justice Dana Fabe, who is on the ballot for retention. The last-minute attack is timed to prevent any response: As the challengers know, rules of ethics prevent judges from campaigning for retention absent "active opposition." Even then, they can't answer directly but must organize a committee to respond.

Not only did the challengers strike late, they struck below the belt. Hoping to leave no chance for the record to be set straight, they proceeded to distort the truth. They portray Justice Fabe as the only justice involved in the decisions that they target, even though most were written by other justices and unanimously endorsed by the full court. They also distort her position in an opinion she wrote, falsely suggesting that she ruled against parental notification for teenagers seeking abortion, while conveniently ignoring her more recent opinion casting the pivotal vote allowing the parental notification initiative to stay on the ballot.

These transparent efforts to manipulate Alaska's voters through delay, distortion and Outside funding pose a serious threat of unfairness to Justice Fabe. Yet no matter how grave this risk of personal injustice might be, it pales by comparison to the lasting damages the unfair challenge threatens to inflict on the core principles supporting Alaska's Constitution.

Our constitution's text and history leave no doubt that Alaska's constitutional delegates chose a system of selecting judges based on merit, not political influence: a system meant to choose independent judges dedicated to deciding cases by faithfully applying our constitution and laws, not by constantly looking for the popular and politically correct result. To this end, the founders of our constitution created the Alaska Judicial Council, an independent agency charged with nominating judicial applicants on their merits and evaluating them for retention on the same basis. Retention elections play a key role in this system, but the election's integrity hinges on an electorate willing to cast retention ballots based on the same measure of judicial qualifications our constitution requires: a judge's ability to follow the law without flinching in the face of popular sentiment or political correctness.

By targeting judges for making politically unpopular decisions, challenges like the one against Justice Fabe do precisely what Alaska's constitutional founders fought hard to avoid: The challenge openly asks voters to decide on retention based on a judge's willingness to obey political beliefs that prevail when ballots are cast. No Alaskan who prizes the freedoms that our constitution protects should be eager to remove a judge for obeying the law instead of buckling to popular or political pressure. But this is exactly why the challengers want voters to reject Justice Fabe: They do not attack her for doing her job poorly; they attack her for disobeying their particular agenda. This approach undermines the foundations of judicial independence our delegates adopted by near-unanimous vote. Alaska's voters must resist this threat by casting informed votes based on the merits of Justice Fabe's history of judicial performance, not on her willingness to obey pressures exerted by vested interests funded outside Alaska.

What voters who look for themselves will find is a wise, fair and extraordinarily diligent judge who has dedicated 34 years to public service, has worked tirelessly to bring equal justice to all Alaskans, has regularly taught students and their teachers about Alaska's legal and constitutional traditions, has earned national acclaim for her leadership as a justice, has twice been elected Chief Justice by her colleagues, has worked effectively with legislators and executive branch officials of all political stripes, and has consistently received high ratings from attorneys, jurors, police and probation officers, and court employees.

Our traditional adherence to the rule of law safeguards the freedoms that make Alaska thrive; a judge's ability to follow these traditions regardless of political pressure is a good thing, not a bad thing. In keeping with this tradition, I urge Alaska's voters to retain Justice Fabe.

Alex Bryner served for over 35 years as a judge in Alaska, including 10 years on the state Supreme Court, three as chief justice. He's now a lawyer in private practice in Anchorage.


BY ALEX BRYNER