HE ISN’T BACKING DOWN
Josh Kindred sailed through his Senate Committee hearing on Wednesday, evidently unfazed by the less-than-kind marks given by the liberal legal establishment in Alaska.
Although Kindred has worked in the private sector, in state government, and at the federal level, and although he has testified in front of congressional committees and has been involved in some of the most important cases facing Alaska, the grades he got from his fellow attorneys were essentially akin to an “F,” — just like the treatment they dished out to the last Trump nominee for the United States District Court for the District of Alaska.
Kindred is the regional solicitor for the Alaska Region of the U.S. Department of the Interior in Anchorage. Before that, he was environmental counsel to the Alaska Oil and Gas Association, was an Assistant District Attorney and Violent Unit Supervisor for the State of Alaska, and is a graduate of both University of Alaska Anchorage and Willamette University School of Law, where he served as editor-in-chief of the Willamette Law Review.
“I first met Josh a decade ago … when I was Alaska’s Attorney General,” said Sen. Dan Sullivan, as he introduced Kindred to the committee. “He was working with me as a prosecutor in the Criminal Division. I was impressed then, and continue to be impressed, with his fierce commitment to equal justice under the law, respect for all, and (his) deep understanding of Alaska’s unique legal landscape.”
The thing that evidently irks the lawyer community of West Anchorage is that at 42, he’s too young, and the Alaska Bar Association poll participants marked him down for his age.
That same ageism discrimination made the first nominee, Jonathan Katchen, withdraw his name from consideration last year, in spite of the fact that he had a more “blue blood” education — Boston College BA and MA and University of California Hastings College of Law JD.
Likely, the real reason the two were marked so harshly by the Alaska legal establishment had to do with blocking a Trump nominee, embarrassing the president, and denying him a victory.
But Kindred didn’t withdraw, and although just 15 percent of those Alaska lawyers voted him “extremely” or “well” qualified, he muscled through the insult and went to the Senate Judiciary Committee, where he received no pushback.
The Alaska Bar Association polls its members and makes a recommendation on judgeships. This can go both ways, but generally, the Alaska Bar Association is a bastion of liberalism, and a Trump nominee is not going to poll well.
Kindred is the son-in-law of the late Sen. Chris Birch, a Republican. His nomination is to fill the seat vacated by Judge Ralph R. Beistline, who took senior status in December of 2015.
The committee has not yet voted on Kindred’s nomination; if he passes muster, his name will be sent to the full Senate for confirmation, which will likely go along party lines for the same reasons — Democrats will try to deny the president another judge confirmation.
As of Dec. 5, the Senate has confirmed 172 judges nominated by President Trump, including two Associate Justices of the Supreme Court of the United States, 48 judges for the United States Courts of Appeals, 120 judges for the U.S. District Courts, and two judges for the U.S. Court of International Trade.
Republican lawyer, “We have to be objective and fair”
dIMOCRAT lawyer, “Stick it to him!”
What happened to the state judges who got A’s? The #1 and #2 on the list. Why were they passed over for an “F” guy?
It is way past time for some sweeping changes in the Alaska Bar Association.
Courts are where Democrats seek to overturn election results they find distasteful.
I would disagree with this assessment for several reasons. To understand those reasons requires understanding the Alaska Bar Association and judicial selection in Alaska. Note: this answer will be long.
The Alaska Bar Association (“ABA” in this answer, not to be confused with American Bar Association) is a mandatory group. All active attorneys are members. Judicial selection processes vary depending upon whether the nomination is for a federal or state position. An open state position involves polling bar members, that is, asking attorneys whether this person would be a good judge or is a good judge. Whatever you think of attorneys, this makes a great deal of sense. After all, doctors know who good doctors are because they understand what it takes to be a doctor. The state bar poll asks questions about a candidate’s experience, temperament, impartiality, etc.
Alaska has a small population so it does not take many votes one way or another to significantly affect any outcomes. Also, for a variety of reasons, civil cases do not generate nearly as many trials, particularly jury trials, as criminal cases. As a practical matter, this means that those who deal with trial issues on a daily basis are more likely to be in criminal cases, which means either prosecutors or defense lawyers. Of civil cases, two of the most common types of hearings are divorces and Child in Need of Aid (CINA) proceedings. Those cases do not involve juries. So it is quite common to see DAs and Public Defenders among nominations for the bench because they have the most experience with jury trials. And it should be no surprise that, among A-type lawyers who go to trial, personalities can conflict. The latest bar poll shows that roughly between 90 and 150 people responded to surveys about potential judicial nominees for open spots. With so few responses, it will not take many who dislike Candidate X to lower Candidate X’s bar scores.
It is also difficult to get to know lawyers outside of your own practice area. Civil lawyers who do not go to court are not nearly as likely to know prosecutors or defense attorneys. Divorce lawyers are not likely to know transactional lawyers. A review of the latest bar poll results is available on the Alaska judicial council website. These results are typical and show that many respondents indeed have trial-heavy practices. As a general rule, then, lawyers who go to court know each other and vote on each other and transactional lawyers know each other and vote on each other.
The federal procedure is a bit different, though. The last few instances involving an open position, the ABA puts out a bar poll asking questions about nominees credential and qualifications, but it is nowhere near as complex or detailed as the state process. Far fewer lawyers routinely practice in federal court. Federal court does not have a docket nearly as large as the state court for a number of reasons so the effect that the lawyers who would know about this position or be able to comment about this position are fewer than would comment about state court judges. Federal bar polls do not have the degree of specificity as state bar polls, nor are the results released. As a result, the poll is more focused upon whether a particular person is qualified for the spot or not.
Qualified can mean several things. It can mean: “Would this person be a good judge?” It can also mean, “How does this person’s experience qualify them for the judiciary?” The bar polls just note that among the people who responded to the poll, X percentage said Y candidate is “extremely qualified” while Z percentage said Y candidate is “well qualified.” Information about who answered “not enough information” is not released.
Mr. Kindred left the State DA’s office about 2013 and took a position in the private sector where he did not go to court as much. This limited his interaction with a great many lawyers, particularly lawyers who go to federal court. Mr. Kindred then went to the Department of the Interior, where his court appearances were generally limited. If I had to speculate, I would speculate that there were a great many “not enough information” boxes checked next to Mr. Kindred, which should be no surprise given his particular work history. I expect that if Mr. Kindred had been in the U.S. Attorney’s office for a few years, even at this age, he would have had far more people describing him as “extremely qualified” or “well qualified.” There are two reasons for this: 1) he would have met many more people in a federal litigation context; and 2) more people would know what he has done. Since few attorneys deal with the Department of the Interior, this necessarily limits those who would know either Mr. Kindred or the nature of his work.
The primary issue with Mr. Kachen, the previous nominee, was not his education or who nominated him or any political bias of the ABA. Rather, he had very little courtroom experience, particularly criminal courtroom experience. The District of Alaska caseload has a significantly higher percentage of criminal cases than many other federal districts. Seattle and San Francisco, for example, have case loads heavy with intellectual property cases related to the IT industry. New York (Southern District – Manhattan) handles a great many cases regarding securities and finance matters. Alaska’s District does deal with oil and gas and natural resources, but criminal matters involving drugs and violent crime make up a healthy portion of the local docket. New York’s criminal docket would far more likely involve SEC and fraud cases than drug conspiracies. In one of those districts, an attorney whose brings experience in one of those fields would make a great deal of sense. In Alaska, it makes a great deal of sense for a candidate to have experience with the types of cases that will frequently be seen. I’ve never met Mr. Kachen and I would mark “not enough information” about him. I am only conveying the concerns I heard from other lawyers about his nomination to this particular spot. The most common response after his nomination, amongst lawyers who go to federal court, was, “Who is he? I’ve never seen him in court down here.”
I know nothing about the politics of either nominee and in discussions about potential nominees, I did not hear anything about who nominated them. In fact, I rarely hear such comments about any trial court nominee, state or federal. Rather, the discussion among lawyers tends to be how the judge will perform: is the judge more likely to grant pre-trial release? Is the court going to be skeptical of officer testimony? What about sentencing? These are nuts and bolts, everyday issues that lawyers usually talk about when talking about trial court judges. Discussions about appellate judges, particularly Supreme Court justices, are admittedly a different matter.
To sum up a lengthy response, then, I do not think that the ABA gave Mr. Kindred failing grades, nor do I believe that the grades were based upon his politics or the President who nominated him. I think the bar poll results were the result of several different factors: the size of the pool of respondents; the number of people that know Mr. Kindred; Mr. Kindred’s own work history, and how bar polls function for federal judges.
I think Mr. Kindred has the potential to be a good judge. When he was a prosecutor, he understood the cases and he listened to the evidence and as an attorney who will undoubtedly appear before him, I ask nothing more. I do, though, disagree that officer safety is an exception to the warrant requirement under the 4th amendment, contrary to his Senate hearing testimony. Officer safety justifies the limited Terry stops, but is not an exception itself. Exceptions include plain view, consent, special needs (airport searches), administrative searches, hot pursuit, and inevitable discovery. But then, I’m not in the spotlight at a Senate confirmation hearing having this question thrown at me.
Mr. Wells,
Excellent, well thought out response. My only question though: while lawyer X, Y & Z may not have seen or heard the nominee in court, how difficult is it to read the court transcripts or ask lawyers or court clerks how nominee A behaves in court? The transcript is the official record and clerks know which lawyers know the law.
I realize this may be construed as being second or third hand knowledge, but to vote “not enough information” for nominee simply delays filling the position and propagates further delays in our courts and the administration of justice.
Thank you.
This is a good question. There are 2 big obstacles to reading transcripts: 1) not every hearing is transcribed; and 2) reading the transcripts without knowing about the case is a hit or miss proposition. That is to give you an idea of how good an attorney does his or her job.
How someone behaves in court? As a general rule, those who apply for judgeships are generally well-behaved in court. That is, they are respectful and professional to juries, parties and the court. I cannot really think of someone who is not well-behaved who has applied for a judicial position. Even if they did, the bar poll would quickly dis-qualify someone for a state position and enough people would know about mis-behavior that someone with a reputation for poor behavior in court would not be nominated for a federal spot.
I recognize the limits that “not enough information” places but that is just the reality of the situation. I try to answer judicial polls, but the reality is sometimes I just do not get to it. Maybe I’m in trial or out of town or have matters on a strict deadline. And trying to get enough information to answer questions about someone you don’t know would take a great deal of time, which is frequently time I do not have.
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