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Compass: Stacking Alaska Judicial Council would be a mistake

  • Author:
  • Updated: September 28, 2016
  • Published March 12, 2014

Resolutions have been introduced in the Alaska Senate and House which propose amendments to the Alaska Constitution's provisions governing the selection of state judges. Those amendments would change the membership of the Alaska Judicial Council, which has the constitutional responsibility to nominate the best-qualified applicants for appointment as judges, by upsetting its equal balance between attorney and non-attorney members. Alaskans should understand why that change would profoundly weaken our Constitution's merit-based judicial selection system.

The delegates to the Alaska Constitutional Convention overwhelmingly rejected a system in which judges are popularly elected or partisan appointments. They recognized that those systems have too often created judiciaries tainted by corruption, cronyism, bias, and mediocrity, if not outright incompetence.

Instead, the delegates adopted a system by which judicial appointments are made based on the professional merit and personal qualifications.

The Alaska Judicial Council evaluates applicants and nominates the best-qualified to the governor for judicial appointment. The Council need not provide the governor with more than two nominees. And the governor must appoint one of the Council's nominees. The delegates thus recognized that the governor should be given some choice, but they limited the governor's latitude to choosing from the applicants found to be best-qualified by the Council.

The delegates carefully balanced the composition of the Council. Under the Constitution, the Council has three attorney members appointed by the governing body of the Alaska Bar Association, three non-attorney members appointed by the governor and confirmed by a majority of the Legislature, and the Chief Justice of the Alaska Supreme Court, who serves as chairman -- but, under Council rules, votes only in the event of a tie among the other members.

Senate Joint Resolution 21 and House Joint Resolution 33 propose to amend the Constitution to create a Council composed of six non-attorney members and three attorney members. That would radically change the Council's balance by making non-attorneys, appointed by the governor, an overwhelming majority of its members.

The adoption of these resolutions would abandon two principles recognized by the Constitutional Convention delegates as essential to a strong, merit-based judicial selection process.

First, delegates -- the vast majority of whom were not lawyers -- recognized that attorney members are particularly well-qualified to evaluate professional qualifications of judicial applicants. The proposed amendments would diminish the role of the Council's attorney members, relegating their assessment of an applicant's professional merit to a subordinate role and undercutting the Constitution's commitment to merit-based judicial selection.

The second principle subverted by the proposed amendments is that partisan politics should be minimized so that the best-qualified applicants are selected and appointed. The delegates recognized that a merit-based system is weakened to the extent that partisanship influences judicial appointments. Thus the Constitution, in addition to limiting the governor's judicial appointment power, allows the governor to name only three Council members. And all members shall be appointed "without regard to political affiliation."

The Alaska Bar Association does not appoint attorneys to the Council based on political affiliation, but rather on professional qualifications. Association appointments are guided by an advisory vote of association members, whose affiliations vary widely, but all of whose interests -- and the public's -- are best served by the appointment of the most qualified judges.

On the other hand, governors are understandably inclined to be less restrained about considering political and partisan affiliations in appointing non-attorney members to the Council. If the number of non-attorney members is dramatically increased, there is little doubt that politics and partisanship will have a much larger impact on the Council's decisions, undermining the constitutional commitment to merit-based judicial selection.

Every day Alaska judges make decisions which profoundly affect the lives of Alaskans. The Alaska Constitution created a judicial selection system rooted in a commitment to the principle that Alaskans are entitled to have those decisions made by judges who are "the best available timber," as a Constitutional Convention delegate explained. The proposed constitutional amendments would signal a retreat from that commitment by tilting the balance away from professional qualifications and toward partisan politics. That would not be good.

Charlie Cole is a former Alaska attorney general.