By SUZANNE DOWNING
How does one explain Anchorage Superior Court Judge Jack McKenna’s outlandish decision against Rep. David Eastman, saying he may not be sworn in until the court decides whether he is sufficiently politically acceptable to the Judiciary?
McKenna is not stupid. He knows that, regardless of what one thinks of Rep. Eastman, the Oath Keepers or their role in Jan. 6, 2021 at the U.S. Capitol, Eastman is an American citizen, entitled to the protections of the United States Constitution, including the rights of free speech and association. McKenna also knows that if the Alaska Court System attempts to prevent Eastman from taking office, the decision will be reversed in federal court because of constitutional protections of the First Amendment.
McKenna is not attempting to damage Eastman politically. He knows he’ll be reelected on Nov. 8. If this ruling has any effect on that election, it will help Eastman in his Wasilla district. So what’s the point?
By this ruling, which has made national headlines, McKenna inserted himself into the ongoing political campaign to discredit the Republican Party by associating it with the events of Jan. 6, and, by implication, with former President Donald Trump.
McKenna is not acting as a judge. He is assuming the role of a calculating political operative. He knows that if the election of 2022 is about President Joe Biden and his record, the Democrats will lose. If instead it’s about Trump, and Jan. 6, Democrats can win.
Legally, McKenna’s ruling is inexplicable. Politically, it makes perfect sense.
So how can Gov. Mike Dunleavy justify his elevation of McKenna to the Superior Court bench? Alaska’s Constitution vests in him, as governor of Alaska, the power of judicial appointments.
As Dunleavy has painfully learned in the past four years, this power is illusory. Judicial appointments can only be made of candidates who have been approved by the Alaska Judicial Council, which is controlled by the three members appointed by the Alaska Bar Association. They, along with the Chief Justice of the Supreme Court, have a majority on the council. They refuse to approve any judicial candidate who does not share their judicial activist philosophy. As a result, Alaska’s judiciary is entirely dominated by ideological soul mates.
The Alaska Supreme Court and Superior Courts are partisan, imperial, and unaccountable. They have been for over 40 years. It doesn’t matter who the people elect as their governor. It’s out of his hands as the judiciary is controlled by the lawyers.
In the case of McKenna, he was the least objectionable of the candidates Dunleavy was forced to choose from. One can only imagine how bad the other choices were. Until this system is changed, Alaskans can expect more Jack McKennas, and there’s nothing they can do about it.
Unless, of course, Alaska’s Constitution is amended, and the Alaska Bar Association’s control of the Judicial Council is eliminated. In the Alaska Legislature, numerous efforts have been made over the years to propose such an amendment. But it’s been proven politically impossible to achieve the needed two-thirds supermajority required. The politicians in black robes who populate our judiciary have enough political allies in the Legislature to prevent passage of such an amendment.
So what can be done? Fortunately, there is a solution in Article XIII, Section 3 of Alaska’s Constitution. It calls for a referendum, every 10 years, on the question of calling a constitutional convention. This year, on Nov. 8, Alaskans can vote for Ballot Measure 1, calling a convention. If it passes, delegates to the convention may, by majority vote, propose an amendment which would put an end to this judicial tyranny. If subsequently approved by the people, Alaska’s lawyers would no longer control the judiciary.
A grass roots campaign is being conducted on behalf of Prop 1 by ConventionYES. It’s are focused on putting the Permanent Fund Dividend formula into the Alaska Constitution, taking that power away from the Legislature. Such an amendment can only be proposed by a convention. Ballot Measure 1 will rise or fall on the question of the dividend, and its future.
But an unavoidable subsidiary issue is judicial reform, which likewise will only be proposed by a convention. If you are outraged by the political antics of Judge McKenna, you should not only vote yes on Ballot Measure 1, you should join the effort of ConventionYES. It will succeed if it can get its message heard. Fortunately for proponents of Ballot Measure 1, Judge McKenna has just illustrated clearly why voters should choose hope over the fear that opponents of the measure are trafficking. Judge McKenna is Exhibit A for why someone would want to vote “yes” on Ballot Measure 1 on Nov. 8.
Suzanne Downing is publisher of Must Read Alaska.
