Gov. Mike Dunleavy recently refused to fill an Alaska Superior Court vacancy, saying in a letter to the Alaska Judicial Council that a list of nominees sent to him for a Palmer Superior Court vacancy was inadequate. The ADN reported that only three names from a list of 10 remaining applicants were submitted for two Superior Court vacancies in the Valley. The governor said that there were qualified applicants “inexplicably” not nominated and requested the council’s reasoning. He later received it and announced that he’ll make his judicial appointment from two remaining names on the Judicial Council’s list.
In past years, other Republican governors also initially pushed back on Judicial Council nominations, but backed down and filled judicial openings from the council’s short nominee lists. It’s certainly understandable that governors want to avoid constitutional impasses; they have plenty of issues on their plates.
Alaska’s judicial nomination process has needed attention for many years. Gov. Dunleavy’s bold step highlights the issue again. We have another opportunity to discuss and even pursue changes that will lead to a more equitable process for selection of our 73 state justices and judges. After all, the work of our judiciary, Alaska’s third branch of government, greatly affects each one of us.
It is not a coincidence that only Republican governors challenge the judicial council’s winnowing process: qualified, conservative attorneys face a more difficult journey toward judicial appointments. Here’s why.
Professor Brian Fitzpatrick of Vanderbilt University has stated that politics are undoubtedly a part of judicial selection in Missouri Plan states (like ours) and writes: “In short, I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.” The professor’s comments are intellectually honest: He describes the elephant in Alaska’s judicial selection room.
About five years ago, Kathleen Tompkins-Miller, a longtime non-attorney member of the Alaska Judicial Council wrote, “It is routinely claimed, in defense of Chief Justice’s and lawyers’ roles on the AJC, that the Alaskan judicial system is free of political influence. That has not always been my experience.” She added: “Regrettably, a candidate who has been actively involved in traditional ‘conservative’ causes is likely to have what appears to be a more vigorous background investigation, disparaging comments (by attorneys in bar polls), and poor bar scores.” She also stated: “Additionally, the members of the Alaska bar have tremendous influence over the process.”
We do. Making up just more than 4% of Alaska’s population, attorneys in active practice comprise a tiny minority with mostly liberal political views. Yet attorneys exert breathtaking influence over the selection and appointment of Alaska judges in four primary ways: by participating in a rating or “poll” for those attorneys who are appointed to the Judicial Council by our association’s Board of Governors; by electing the attorney members of the Board of Governors, which, in turn, makes those appointments; by participating in a rating or poll for judicial applicants that is given tremendous weight by the Judicial Council; and by the influence and tiebreaking authority of the Supreme Court’s Chief Justice, an attorney and ex-officio member of the Judicial Council. Additionally, the professional advocacy skills and persuasive abilities of these four attorneys in Council deliberations are formidable and influential. In contrast, there are only three non-attorney, public members. It’s no small thing to change the mind of even one attorney.
Qualifications of Alaska judges are established by statute. However, in 1983, the Judicial Council declared that only the names of those candidates it determines “most qualified” will be submitted to the governor for appointment consideration. Therein lies the rub: This determination is subjective, and can lead to the rejection of highly qualified candidates.
Those occasions have left me and other attorneys shaking our heads in bewilderment. In her letter to the Legislature, Tompkins-Miller added: “This process also keeps many good attorneys from applying or they withdraw their name because of the poll being made available to the public ... Many with low bar scores likely feel they won’t have the ability to get through the council. It can also be difficult to get a candidate through the process who would be considered by some to be ‘conservative’ in their judicial philosophy.”
In 2014, HJR 33 proposed to reduce attorney influence by increasing the number of public members on the Alaska Judicial Council. It was adamantly opposed by a number of attorneys, judges, and others -- and died. The council could also revise its subjective “most qualified” standard, but it takes four members to do so. Legislative and constitutional changes are possible too.
Let me be clear. We have a better plan for selection and appointment of judges than an elective process. The Missouri Plan has made politics in judicial selection less influential -- but also less visible. If at all, politics should come into play only when a governor must choose amongst qualified judicial candidates nominated by the Judicial Council. The governor is elected, not members of the AJC. As have other states, we should consider offsetting the remarkable influence of a tiny and powerful minority while keeping the essential input of attorneys in the judicial selection process.
More than 40 years of practicing law in Alaska have been wonderfully rewarding for me in so many ways. But, I’ve also become more realistic and practical. My days as a misty-eyed, young lawyer slaying dragons atop a white steed are over. Be advised, therefore, that mine are minority views among Alaska’s attorneys. They may be quickly shouted down and disregarded. Expressing them here likely won’t help me in a bar poll. However, I wanted you to know that there’s another side to the story – a side that helps explain why some governors push back.
Larry D. Wood is an Eagle River attorney who has practiced law in Alaska since 1976. A longtime resident, he was born here in Alaska’s territorial days.
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