While social conservatives have campaigned against retaining state judges in recent elections, this year they are focused on a constitutional convention as a way to reshape the state’s judicial selection process.
Framers of the state’s constitution established the Alaska Judicial Council to select a pool of judges to forward on to the governor, who makes a final choice. The structure is a merit-based system with judges periodically appearing on the ballot for voters to decide if they should remain on the bench.
The council is composed of three attorneys chosen by fellow attorneys, and three members of the public who are nominated by the governor and confirmed by the Legislature. The chief justice of the Alaska Supreme Court serves as the seventh member and chair.
At the time Alaska’s constitution was originally written, “one of their main goals was to keep partisan politics as much as possible out of the judicial selection and retention process,” said Susanne DePietro, executive director of the Alaska Judicial Council. “They just couldn’t have been more crystal clear about it.”
Conservatives have long asserted the current system gives too much power to unelected lawyers and keeps conservative judges off the bench. Former Alaska Lt. Gov. Craig Campbell, chair of Convention Yes, the leading group encouraging Alaskans to vote for a convention, said the system prevents conservative nominees from even being considered.
“There could be many judges that the governor would like to appoint, but they’re not selected by the judicial council,” he said.
A proposed constitutional amendment to add seats to the council and require legislative confirmation for all members failed to pass in 2015. So have more recent attempts to upend how lower court judges are chosen.
Both supporters and detractors see a constitutional convention as the most likely way changes would be made.
The Alaska Judicial Council unanimously endorsed all 29 state judges up for retention this year.
Starting in 1976, the council has evaluated judges to help voters make informed decisions before retention votes. Just four judges have been rejected since then.
Christian advocacy group the Alaska Family Council has campaigned against retaining a handful of judges since 2010, largely over abortion decisions.
Two years ago, Justice Susan Carney was the subject of a campaign against her retention, launched weeks before the election. That inspired the formation of the group Alaskans for Fair Courts, which advocates for judges “who come under unwarranted political attacks,” said Donna Goldsmith, a semi-retired attorney who helped found the nonprofit, which now operates year-round.
Members have been telling Alaskans about why the state’s judicial selection system is considered the “gold standard” across the U.S. and why it should not be politicized, she said.
The evaluation process is “exhaustive,” Goldsmith said, with information for voters available on the judicial council’s website. Attorneys, law enforcement officers, probation officers and even jurors participate in evaluations.
A strident abortion opponent and supporter of a constitutional convention, Minnery said the focus of the evaluations is too much about whether the applicant is qualified, and not enough on their judicial philosophy.
He said he wants to see more constitutional originalists on the bench. Questions asking if a judge is closer philosophically to U.S. Supreme Court Justice Clarence Thomas or to the late Justice Ruth Bader Ginsburg would better inform voters before retention votes, Minnery said.
One incident that is fueling the push from constitutional convention supporters happened last year, when Kotzebue Judge Paul Roetman — a conservative favorite — did not make the council’s final list of nominees for an open state Supreme Court seat. After a statewide survey of attorneys, he ranked sixth of seven nominees.
The council’s bylaws required advancing “the most qualified” candidates, but Dunleavy asked for reconsideration of Roetman. After initially balking at his choices, Dunleavy appointed Judge Jennifer Henderson by the constitutional deadline.
That frustrated Minnery, who said, “What I really want is for elections to matter.”
He wants Alaska to have a judicial selection system, like the federal model, where the president nominates a judge who is then confirmed by the U.S. Senate. A liberal governor could nominate liberal judges, a conservative could nominate conservatives, Minnery said.
Campbell wants something similar. He said the judicial council should become an advisory body. It could make recommendations about prospective judges, but it would be compelled to advance all nominees along to the governor.
Supporters of Alaska’s current system said that would destroy the merit-based selection system by making judges subject to the political winds of the day.
“We risk politicizing judicial decisions if we eliminate the independent recommendations of the judicial council,” Goldsmith said.
At forums, Campbell has expressed frustration over the Alaska Supreme Court’s 2017 decision that the Permanent Fund dividend is an appropriation like any other.
Democratic Sen. Bill Wielechowski, an attorney who argued the case as its lead plaintiff, has long supported a full statutory PFD, but he said the state’s judicial selection system should not be dismantled because of one lost case.
“I vehemently disagreed with that decision,” he said. “That said, I think our judiciary system is one of the best in the country.”
The council’s makeup could shift soon, regardless of the constitutional convention vote.
The next governor will get to appoint two of the three public members, as those currently serving will have their terms end in the next two years. One of the three attorney members will be replaced in 2024.
Chief Justice Daniel Winfree is stepping down from the five-member Alaska Supreme Court after reaching the mandatory retirement age of 70.
The council has seven finalists for his seat, including Roetman, who submitted himself again for consideration. Council members will advance two or more nominees onto the next governor after the Nov. 8 election.