Perhaps the most important principle in our state constitution is in the Declaration of Rights, Article 1, Section 2: "All political power is inherent in the people. All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole." These words were intended to have meaning.
Public officials in the legislative, executive and judicial branches fulfill important roles in applying, upholding and interpreting our constitution. But the "last word" on what it means remains with the true owners of the document--the people. The time has come to heed these words and give Alaskans more say in how our judges are chosen.
Allow us to explain. A person wanting to become a judge must apply to the Alaska Judicial Council. The council consists of three lawyers chosen by the Alaska Bar Association, a private professional organization, plus three non-lawyers chosen from the public by the governor. Public members are confirmed by the Legislature but the lawyers are not. The Chief Justice of the Alaska Supreme Court, also a lawyer and member of the Bar Association, is the seventh member--giving lawyers a majority of four.
Judicial applicants must meet basic qualifications established by law--U.S. citizenship, Alaska residency, licensed to practice law, and experienced as lawyers. Beyond that, it is the job of the council to vet applicants to find those qualified, so names may be advanced to the governor for appointment to the courts. And, therein lies the problem--if there is a 3-3 tie among Council members the Chief Justice breaks it. So the Council is not balanced, it is controlled by lawyers.
SJR 21 and HJR 33 add three non-lawyer members to the council, bringing its membership to 10. Other than giving the people of Alaska more representation, and greater opportunity for geographic balance and ethnic diversity, these resolutions leave the merit selection process for judges unchanged.
So why do the people of Alaska need more representation on the council? Two important reasons: First, so 730,000 Alaskans who are not lawyers can have their voices heard--no more lawyer monopoly. Second, to make the judicial nomination process fairer and less partisan.
Although rare in the past, in just the last four years the council's lawyer and public members have tied 3-3 on five separate occasions of nominating an applicant. Each time the Chief Justice has sided with the lawyers and rejected the applicant the public members believed to be highly qualified. Three rejected applicants were sitting Superior Court judges previously deemed to be among "the tallest timber," and by all accounts, doing their jobs well. Twice, the Chief Justice broke a tie, voting against these judges -- thus limiting who could even be considered to sit with her on the high court.
Lawyers are by nature partisan and political. That's not bad in itself. We too engage in those activities. However, when that is outside the public process and controls who can be considered for a judgeship, it's going too far. The Bar Association already has a huge influence on the process of selecting judges by its Bar poll. And many fair-minded individuals are troubled even by how this poll is conducted--seemingly in many cases to demean well-respected applicants. So further dominating the review process with a majority of lawyers on the Council no longer makes sense--if it ever did.
Even constitutional convention delegate Vic Fischer, in his book "Alaska's Constitutional Convention," quotes convention advisors as saying:
"These [judicial] sections...go a long way toward withdrawing the judicial branch from the control of the people of this State and placing it under the organized bar. No state constitution has ever gone this far in placing one of the three coordinate branches of the government beyond the reach of democratic controls."
Alaska's lawyers provide important input, but their participation should not be controlling. SJR 21 and HJR 33 should be adopted to give voters the opportunity to shift the balance of power where it belongs -- with the people of Alaska.
Loren Leman is a consulting engineer and fisherman. He also served in the Alaska Legislature and as lieutenant governor. Dave Parker serves as a public member on the Alaska Judicial Council. He is a retired Anchorage police officer and now lives in Wasilla.
By LOREN LEMAN and DAVE PARKER