Judicial council amendment dies on Senate floor

Richard Mauer
Richard Mauer

JUNEAU -- A constitutional amendment sought by social conservatives to double the number of political appointees on the panel that nominates judges took a breath on the Senate floor Saturday, then died.

Lacking the 14 votes to move the measure to the House and then, possibly, voters, Sen. Pete Kelly, R-Fairbanks, gave up his fight and withdrew the measure, though not before initiating debate on it. Senate Joint Resolution 21 had been on the Senate calendar for eight days while Kelly, co-chairman of the Senate Finance Committee, lobbied other senators to support it, to no avail.

The move came as the 28th Legislature enters its final week with no shortage of other business on its agenda.

Without a vote, it's impossible to know how close he got, though some senators have suggested he was at least as close to the two-thirds needed as the other failed constitutional amendment sought by conservatives, the one that would allow school vouchers.

Kelly and some amendment backers had sought a vote to draw the battle lines into the open, but the Republican-led caucus and the Rules chairwoman, Lesil McGuire, R-Anchorage, would have nothing to do with it -- though she was one of the amendment's co-sponsors. The other sponsors were Sen. Cathy Giessel, R-Anchorage, and Mike Dunleavy, R-Wasilla, the prime sponsor of the voucher amendment.

Conservatives have long been unhappy with the state's judiciary over decisions that elevate a woman's right to privacy -- and therefore the right to abortion -- over legislative efforts to restrict abortions, among other issues. Though Republicans have control of the governor's office and both houses of the Legislature, the courts have been out of reach, by design.

The constitution put several barriers in place to protect the independence of the judiciary and promote a merit system for selecting and retaining judges. Candidates for judges are scored based on surveys, and they're selected by the Judicial Council, a body created by the constitution with three lay members appointed by the governor and three attorneys selected by the state bar. The chief justice of the Alaska Supreme Court sits ex officio and casts a vote to break a tie.

The governor can only pick a judge from names sent by the council.

Kelly's constitutional amendment would double the number of lay members. Three attorneys would still be on the panel, but they'd be subject to confirmation by the Legislature.

It's rare, but not unknown, for the sponsor of a bill to speak for it on the floor as if initiating debate, then to kill it.

"I probably don't have 14 votes, but I thought it was important to have this discussion," Kelly said. "I want to assure the members that I didn't frivolously bring this to the floor so that I could have my moment in front of the cameras. I wanted this debate to happen in some forum that the people of Alaska could hear about to know that this is an important thing."

In his introduction, Kelly rejected the notion that the constitution was sacrosanct. He described the bar as a "guild" that lobbied its way into a privileged position on the Judicial Council during the constitutional convention.

"It's fundamentally wrong in our system of government to have a guild choose members of a body of government and then not even to have to go through the confirmation process," Kelly said.

In their replies, two Democrats from Anchorage who had been preparing their own speeches in opposition, Sens. Hollis French and Bill Wielechowski, offered their sympathy to Kelly for having to see his bill die. As members of the small Democratic minority, it happens to them all them.

French noted that a "strong cadre of highly respected Alaskans" opposed the amendment, including attorneys general who served Republican and Democratic governors, and a retired chief justice of the state Supreme Court.

French, an attorney, said Kelly had the "burden of proof" to show why the current system is broken.

"What's wrong with the way we select Alaska judges?" French said. "The proponents had a hard time pointing out one case where something went wrong on the judicial council -- they couldn't point one case where the wrong person got promoted to the bench, or where the right person was denied a seat on the bench."

The writers of the constitution debated how to select judges, and came up with the present one," Wielechowski said.

Wielechowski, also an attorney, said lawyers have a key function on the council. "The lawyers know who is good, they know who is bad. The lawyers practice with these people every day."

Reach Richard Mauer at rmauer@adn.com or (907) 500-7388.


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