As Anchorage Daily News reporter James Brooks reported last week, a string of defeats suffered by Gov. Mike Dunleavy in prominent court cases this year has exposed the limits of his administration’s ability to push their agenda through the court system -- the last bulwark and a major check and balance against government overreach.The Permanent Fund dividend and oil taxes are kitchen table talk for most Alaskans, but more than anything else, the judiciary -- and its interpretation of the Alaska Constitution -- is at the heart of the ongoing battle to save American constitutional democracy, both here and at the national level. It’s a form of constitutional democracy that, for the most part and ideally, protects and prioritizes individual rights and liberties above corporate interests. To understand what is happening, you have to start with Alaska’s judicial selection process. The Alaska Court System’s website explains:
Alaska’s judges are selected by what is called the Judicial Merit Selection System. The authors of Alaska’s Constitution believed that it was important to have judges who were honest, fair, impartial, intelligent, experienced in applying the law, committed to following the rule of law and serving the interests of justice. Likewise, the authors believed that traditional partisan politics, with its influence of money, political patronage, deal-making and favoritism, posed too great a threat and impediment to achieving the desired goal of having a judiciary composed of such fair and impartial judges. That’s why the authors of the constitution decided that Alaska’s judges should be chosen by the Judicial Merit Selection System.
This system works through a rigorous vetting process. Attorneys who apply to be judges are rated by their colleagues and interviewed by the Alaska Judicial Council. The Council then sends two or more names to the governor for appointment to the bench, and the governor chooses from those names. Judges then stand for retention at general elections according to a set schedule.
Gov. Dunleavy ran into trouble this year when he hijacked this process by illegally insisting that the Council provide him with different names. This unconstitutional “negotiation” delayed the appointment of a Palmer Superior Court judge and is now a stated legal ground for recalling the governor—one that Dunleavy’s appointed Attorney General Kevin Clarkson has deemed legally insufficient.
We'll see about that.
As Attorney General Clarkson himself said, the Alaska Supreme Court will have the final say about this and other positions he has taken, and that is the point.
The Alaska Supreme Court interprets the Alaska Constitution and those opinions become law; law that trial courts are required to follow, and that future justices of the Alaska Supreme Court must generally follow as well. Every government lawyer is accustomed to making arguments for the state that are perhaps losing arguments, or that they disagree with personally. But Attorney General Clarkson has gone a step further by forcing career attorneys at the Department of Law to -- at a minimum -- embarrass themselves in court by taking positions clearly at odds with judicial precedent.
Why would he do this?
The answer is bigger than Alaska, although we are a rich laboratory for these constitutional experiments. This is part of a national trend and tactic on the far right to discredit the judicial branch by forcing clearly losing cases to the courts. That way, when they lose, proponents of these positions can blame an “activist judiciary” for following precedent on a document that, for his part, Gov. Dunleavy wants to amend to favor corporations over individuals. (Fortunately, amending the constitution is very hard to do.)
In short, decades of Alaska Supreme Court precedent have given Alaskans liberty, privacy, education, resource and property interests unmatched elsewhere in the nation and stronger than those afforded at the federal level. This precedent has helped cement Alaska’s reputation as a bastion of rugged individualism, which helps individuals but arguably harms corporations. Neutering the constitution and hobbling and stacking the judiciary is the Holy Grail of this mode of governing.
It remains to be seen which of Attorney General Clarkson's positions will be overturned or upheld by the Alaska Supreme Court, but if he loses, look for this administration to blame the referees, and loudly.
That reaction is a key performative move in a long game, the ultimate goal of which is a showdown at the ballot box to unseat judges for doing their jobs and/or open the door to a constitutional convention designed to unravel civil liberties.
It is an axiom of creeping autocracy that “your institutions will not save you.” Unfortunately, the Dunleavy administration has put Alaskans in the perilous position of waiting for our judiciary to do exactly that.
Libby Bakalar is an attorney in private practice in Juneau, and maintains a blog called One Hot Mess. She is a former Senior Assistant Attorney General at the Department of Law, where she served the state for more than 12 years. She also served as a law clerk to Superior Court Judge Beverly W. Cutler (ret.) in Palmer from 2005-2006.
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