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How Alaska’s judicial selection puts the federal system to shame

  • Author: Anchorage Daily News editorial board
    | Opinion
  • Updated: September 26
  • Published September 26

Assistant Attorney General Laura Fox argues the state's position on the disputed Democratic primary election before the Alaska Supreme Court on Wednesday, Oct. 12, 2016. (Bill Roth / ADN archive)

There’s not much that’s pretty about national politics these days, but even among a sea of partisan ugliness, the process of selecting judges for the highest court in the land stands out. It wasn’t always so, but in recent years, the process for selecting and confirming Supreme Court justices has become the bitterest political fight in Washington, D.C., with both parties willing to go to virtually any length to ensure — or obstruct — the seating of a nominee. The confirmation process for the successor to Justice Ruth Bader Ginsburg promises to be the ugliest yet. With our country so sharply divided and each justice able to shape the interpretation of American law for a generation, the rancor is sickening but hardly surprising.

Still, you might ask, isn’t there a better way we could pick judges?

The answer is yes. And Alaska has that system.

Opportune timing

As the 49th state admitted into the union, Alaska had the benefit of comparing the judicial selection systems set up by dozens of other states. In some states, judges were elected in partisan races, like those in the legislative and executive branches. Others had ostensibly nonpartisan elections. In those without elections, the governor selected judges directly, and those picks were subject to confirmation by the state Senate. Each system had its virtues, but also serious flaws. Where judges were elected, partisanship crept in, as did valid concerns that judges would be influenced by those donating to their campaigns. And where governors picked judges directly, there was the danger of the chief executive rewarding political allies, especially in the event that the Senate was controlled by the same party.

Fortunately for the delegates to Alaska’s Constitutional Convention, a new system had recently been devised by Missouri. Under that system, a nonpartisan judicial council reviewed applicants for judicial vacancies and forwarded those considered the best qualified candidates to the governor. The governor selected from the list, and thereafter, at regular intervals, the judge would stand for a nonpartisan up-or-down retention vote by the people of the state. It blended a low-politics selection process with public accountability in retention elections, and it was overwhelmingly favored by Alaska’s constitutional framers — particularly those who had seen the other systems for judicial selection play out.

Ultimately, Alaska’s judicial council must send the governor at least two candidates for each vacant judgeship, and the governor must abide by their selections. Gov. Mike Dunleavy unsuccessfully pushed back against that requirement early in his term, refusing to select a judge within the allotted time frame, but he wasn’t the first to do so — former Govs. Frank Murkowski and Wally Hickel also tried — similarly unsuccessfully — to go off-list with judicial selections.

The Alaska Judicial Council

Of course, the selection system is only as good as the people who operate it. In this, too, Alaska is fortunate. The Alaska Judicial Council is made up of three attorney members selected by the membership of the Alaska Bar Association, as well as three non-attorney members appointed by the governor to six-year terms. The chief justice of the Alaska Supreme Court is the council’s chairman. The half-and-half makeup of the group allows for a public voice in the group, but doesn’t let the governor pack its membership with political allies. And in practice, the council has worked well, an oasis mostly free of political considerations. It may well be the part of Alaska’s state government that stays truest to the ideals of its founders.

And the council provides another important service: It vets judges who are up for retention and lets the public know if they have reason to be concerned. Several months prior to the election, the council surveys those who have appeared before the judges, investigates whether the judges have been timely and appropriate in their decisions and dealings, and asks those who are standing for retention to evaluate themselves. The council uses that information to make recommendations about whether voters should retain the judges, and those recommendations are published in the state’s voter guide and online at the Judicial Council’s website. The process isn’t a rubber stamp — sometimes the council will recommend a judge not be retained. Read up on the council’s assessments of each judge — the data is public and provides a great deal of detail.

Campaign rules

Ordinarily, judges standing for retention are barred from campaigning for themselves, as the principle behind Alaska’s system is that they will be retained or not based solely on their performance. But if organized opposition arises to the retention for a particular judge, that judge is allowed to respond, mount a defense and actively campaign for voters to approve their retention. Sometimes that effort succeeds and the judge is retained; in other cases, voters decide against the judge. But campaigns against particular judges are relatively uncommon, so that’s why you don’t typically see yard signs promoting folks in black robes.

Making an informed decision

Judges are at the end of the ballot, and their retention gets little to no public attention prior to voters stepping into the booth to cast their ballots. That goes some distance toward explaining why many Alaskans don’t bother even casting votes for judges — or why some reflexively choose to vote against them.

Alaska deserves better than that. The judicial branch is coequal to the Legislature and the governor in its importance; it deserves thoughtful consideration by Alaskans. Before you cast your vote this year, check out the Alaska Judicial Council’s website. Read the recommendations in the state voter guide. As in legislative and gubernatorial races, we get better representation from the judiciary when we cast informed votes instead of marking ovals blindly. And with every judge up for retention this year receiving unanimous support from the Judicial Council, Alaskans should feel confident in approving their continued service.

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