The method for selecting judges set in Alaska's constitution has been hailed as a national model. It is now under attack in the Legislature, the instrument of attack is a constitutional amendment switching complete control over the selection process to the governor.
The present structure provides for a screening process for judicial candidates through a seven-member Judicial Council consisting of three persons appointed by the governor and subject to legislative confirmation, three appointed by the Board of Governors of the Alaska Bar Association and the Chief Justice. The Bar Association is an official, constitutionally established body including every licensed lawyer in the state, not a "private professional organization" as described in a recent Compass piece. The Council reviews the qualifications of candidates and sends the names of at least two to the governor for his final appointment.
By adding three more members appointed by the governor, the selection of judges is no longer subject to a rigorous screening process. The reality is that only lawyers sharing some affiliation or friendship with the governor will apply and he will get who he wants.
One is immediately reminded of the infamous "court packing" move of President Roosevelt, who tried to add two justices to the Supreme Court because he didn't like some of the decisions it was making. Roosevelt's proposal was overwhelmingly rejected by the Congress and the people.
Members of the Bar are subject to discipline and disbarment by the Supreme Court. They are considered "officers of the court" and a formal system of ethics governs their conduct. The Board of Governors and their appointees are all elected by the membership, over two thousand at this time. There is no partisan identification or campaigning in the selection of Board members or the Board's designees to the Judicial Council. Though the governor's appointees are required by the constitution to be nonpartisan, the reality is different.
The present system preserves the "separation of powers" concept we all learned about in school. To give the governor new appointments concentrates all power in the executive.
The reason the governor and his supporters are pushing this proposal in the Legislature is because they want decisions of the courts to reflect their political preferences. The choice of the constitutional fathers to tilt the selection process slightly towards lawyers has a justification.
Lawyers want judges who will be knowledgeable, fair and disinterested in the cases the lawyers bring before the courts on a daily basis on behalf of members of the public. Only in rare instances are political issues involved in litigation. Lawyers could care less what a judge's political views are. What they want is a judge who is smart, experienced, insightful and fair.
Lawyers, by education and experience, know better than most members of the general public the qualities that make a good judge. The lay members of the commission add a dimension of appreciation of character and the council members, in the selection process, interact as individuals not "lawyers vs laymen." The Council also polls the police community in considering judicial qualifications, seeking comment from every direction to aid in the selection process.
Consolidation of power over court appointments in the person of the governor has serious consequences. We look to the courts to check on the legality of executive and legislative action. What happens when the judges are selected for gubernatorial loyalty and are totally beholden to him for appointment? The public surely wants the law stated by judicial authority, not gubernatorial loyalists, campaign contributors or party hacks.
Our friend Loren Leman, in his Daily News Compass piece (March 21), says that by adding more gubernatorial nominees to the Council, we are "making the judicial nomination process fairer and less partisan." Surely Loren is joking.
Do these proposals (HJR 33 and SJR 21) "shift the balance of power to the people" as Loren and his colleague Dave Parker proclaim, or do they shift judicial power to the governor to the profound detriment of the public interest in a politically neutral judiciary?
John Havelock, a lawyer practicing with Havelock & Duffy, is the author "Let's Get It Right," a section by section analysis of the Alaska Constitution.
commentBy JOHN HAVELOCK