By WILLIAM R. SATTERBERG JR.
I have been practicing both civil and criminal law since 1976. For several years, I have been asked why I did not become a judge. There are numerous reasons.
One primary reason is because I have a serious skepticism over the current selection process used for judges in Alaska. While proponents claim it is solely a merit-based system, I dissent.
Selecting judges in Alaska involves a rather unique method. Interested candidates must first submit their names to the Alaska Judicial Council. The Council is made up of six members drawn three each from the public and the legal profession with a tie breaking seventh member being the Chief Justice of the Alaska Supreme Court.
As designed, the Judicial Council was intended to be an organization which would vet candidates who had applied for judgeship. After engaging in this vetting process, the Council would then forward names which the Council voted as acceptable potential judges to the governor, who would then appoint a judge only from that list of approved Judicial Council candidates. Regretfully, the system does not work as intended.
In 1990, I was a campaign coordinator for then-to-be Gov. Walter J. Hickel, who ran on Joe Vogler’s Independence Party ticket. After the governor had been elected, I was encouraged to apply for a judgeship.
I answered that the likelihood of me ever getting an appointment was dismal. After all, I did not have the experience at the time, having only been practicing for 14 years. In addition, my self-esteem had always suffered. A timid person by nature, I did not want to see the results of the required Bar Polls.
One staffer suggested that I should still submit my name. If my name did not get referred from the Judicial Council, he said the administration could simply keep rejecting names until mine eventually showed up.
Although that is not how the selection process actually works, I still was flattered. However, I did not believe in participating in such a charade. I declined. Which brings me to my personal opinions to follow.
Alaska’s Judicial Council has become a politicized organization in many respects. Presumably, the Council objectively analyzes the qualifications of various candidates, investigates backgrounds, conducts impartial interviews, and then forwards “the most qualified” candidates to the governor. The governor’s obligation is to then pick a candidate only from that list. No latitude is allowed. But, the process does not start there.
Rather, even before prospective candidates are reviewed by the Judicial Council, they must first submit to the “Bar Poll.” The Bar Poll is supposed to be candid evaluations of the candidates by fellow legal practitioners, who must sign a statement that they intend to be truthful in their evaluations.
In practice however, the Bar Poll is often an opportunity for answering attorneys to take shots at any applicant that they may dislike. For years, the Bar Poll has been slightly more than a sophisticated blog, long before blogs became commonplace. And, to make the insults even worse, respondents can submit their comments anonymously. Because disclosing one’s name is optional, the Bar Poll has very little practical credibility.
The considerations which go into evaluating attorneys for potential judgeship as expressed in the Bar Poll often have nothing to do with the qualifications of the candidate. To the contrary, Bar Poll responses are often calculated to take advantage of geographical location, gender, and other political considerations.
Traditionally, the perception is that Anchorage votes against Fairbanks candidates, and Fairbanks votes against Anchorage candidates. No one knows what Southeast Alaska does. And it goes on – Prosecutors vote for prosecutors. Defenders vote for defenders, etc.
Recognizing valid concerns about the peer group evaluation process, the Bar Poll attempted to do away with politics several years ago by requiring attorneys to certify that they would answer the poll honestly. Of course! (As long as one does not have to disclose his/her name.)
In one sense, the Bar Poll does serve a purpose. Quite often, the Bar Poll weeds out those who simply are disgusted with the process and who finally accept that they stand no realistic chance of ever gaining sufficient peer-group support. More than one attorney has pulled their name after recognizing that the results in the Bar Poll were abysmal. Sensitive egos.
After the Bar Poll, the names are forwarded to the Judicial Council for evaluation by the seven-member committee.
I recall one instance when only two names were sent to the governor for a position on the Fairbanks Superior Court. Although both candidates were well qualified, I still was disappointed that more names had not been sent to the governor. When I complained, I was reminded that Fairbanks lacked female judges.
The Judicial Council had apparently decided that it would remedy the gender gap by giving the governor only two female picks. I asked one of the male individuals who, in my opinion, was also well qualified for the judgeship why he did not get selected. He answered that the bulk of questioning before the Judicial Council had centered upon why women were not invited to his men’s-only poker party.
Why any such question would have any relevancy to the person’s qualifications for judgeship was beyond me, since I had never been invited either. Nevertheless, it appeared that this was a focus of the process. Clearly, he should have folded early on.
More recently, in an act of outright defiance, the Judicial Council found only one candidate to be qualified for an opening. Since our Constitution says the governor is entitled to at least two names, the Council chose to send no names to the governor for this much-needed Fairbanks district court judgeship, thus frustrating the appointment process entirely. The one qualified candidate was certainly well suited for the appointment. But so were several others. The decision was clearly political.
Assuming that an attorney has actually survived the Bar Poll hazing and the Judicial Council interrogation, his or her name then is passed on to the governor if favored by a majority vote of the Council.
The governor can only interview the candidates forwarded by the Judicial Council After the interviews, the governor must appoint the successful candidate within 45 days. No exceptions or extensions of time, lest the governor risk a recall movement. But it is again submitted that the candidates the governor must choose from are selected often via popularity and politics, and not just merit. This can lead to partisan judges, which politicizes the Alaska judicial system, skewing the third, presumably impartial, branch of government.
I have laid out some of the problems with Alaska’s judicial selection process. There are a variety of reforms that could improve it. Some are complicated. But the easiest would make our process more like the federal evaluation process. The Judicial Council would be required to send the names of all applying candidates to the governor. However, the Judicial Council would first do its due diligence in thoroughly investigating applicants’ backgrounds, laying that information out clearly, and passing it all along to the Governor and to the public it serves.
Most importantly, the Judicial Council would not place itself in the position of deciding in advance who gets the appointment and who does not by sending up only the names that the Council prefers. Rather, it is the governor’s decision to make the appointment.
It’s time for Alaska to stop the funny business. Our judicial selection process needs to be reformed. Alaskans deserve not only nonpartisan judges, but also the best quality ones. The Council will still serve a very valuable purpose which would be to thoroughly screen candidates. The Council would then make full disclosure to the governor and the public of their opinions and evaluations of these candidates.
Ultimately, it would be the governor who would make the decision based on the names of all candidates who have applied for a position and not the Council by effectively tying the governor’s hands or giving the Governor the proverbial unacceptable Hobson’s choice.
The governor’s selection would then be subject to confirmation by the state legislature, similar to how the federal system has effectively worked for years. Most importantly, it would remove the politicization of the Alaska Judicial Council which currently exists. Serious change is needed if the judicial selection system is going to have integrity as opposed to being just another political tool. The change will require an amendment to Alaska’s Constitution.
But it is long overdue.
William R. Satterberg, Jr., is an attorney in Fairbanks, Alaska. His practice has been an active litigation firm in Alaska since 1982. Bill worked as an Assistant Attorney General for the State of Alaska from 1976 to 1980. This opinion was first published by the Alaska Policy Forum.
Great article. I would submit some constitutional convention comments, McNealy, Page 583, “…It states that, “Justices of the Supreme Court and judges of the Superior Court are appointed by the Governor on nomination by the Judicial Council as provided in this article.” Being an attorney, I know the background of the appointment system of judges. Being an Alaskan I have lived under the appointment system so long that I feel that I should have the right to vote for these judges. The thought behind this I believe and the thought of the Judiciary Committee no doubt is to keep judges out of politics. In my opinion this appointment method will bring judges into politics more so than an election by the people. For that reason and in regard to many other reasons which I do not want to take up the time of the Convention to discuss now, I am opposed to the appointment by the governor on nomination by the judicial council.” and discussion on Page 590, “V. RIVERS: Mr. Taylor, if the governor does not appoint and the appointment springs from judicial council, why is not only one name recommended to him instead of two?
TAYLOR: It is to give a choice.
V. RlVERS: He has a choice power and appointive power?
TAYLOR: That is correct. I might say that there will be legislative act to implement these sections that are in here. He will have to appoint because it devolves upon him. There can be three to give him a choice if he wants them, according to what the legislature says.”
Now I’m not an attorney, but I can’t help but think that based on Article IV, Section 1, and Section 5, the Legislature can regulate this solely because the Section 5 does not limit the number of nominations or even better the Alaska Department of Law through our AG can make the case. Certainly the Judicial Council per Section 5 can send “two or more persons nominated by the judicial council”, but doesn’t the public and the body politic have a right to know all persons in the nomination process and the Governor has the right to select from that without a constitutional amendment? So if it is only 2 names then it is two names but if it is 10 names then all ten names should be sent to the Governor. Thanks for your article.
I asked the question years ago and as yet, no one has provided a satisfactory answer; since when is a vagina a qualification for anything? A vag doesn’t help you perform your duties as a public official (unless you’re Kamala Harris) or make you a better CEO or company board member. The Left has convinced themselves that this body part is the lynch pin to a better everything but has never actually revealed the proof that it does.
Perhaps the writer should ask why a penis should be considered a qualification. The population mix is about 50/50 male/female. Shouldn’t that be the proper mix for jurors, representatives, senators, Presidents, CEOs, dog catchers, soldiers, sailors, saints, and, of course, sinners?
No, you are wrong Greg, terribly terribly wrong. The correct answer is that NEITHER the presence of a penis nor a vagina should in any way influence the selection of jurors, representatives, senators, Presidents, etc. etc. Your belief otherwise is just sexism and social divisiveness masquerading as social justice.
Freaking lawyers choosing lawyers, the only group as dishonest as politicians yet rivaling journalist.
Inmates choosing the asylum administration. Guaranteed to produce insane results. Psycho insane; not at all funny.
That’s why a lot of lawyers have become politicians; they fit right in.
The practice of law is mostly just politics on the personal level, so yes, lawyers do fit right in with politicians. Both are primarily sociopaths.
One question Bill, how are the Bar Association members of the Judicial Council chosen? I agree with you, but am concerned about muddying things up even more. Why not just do away with the Judicial Council?
Geez Bill, if you quit using your 6th grade photo in your Bar Rag articles, I might have supported you for Superior Court Judge. This reminds me of another would-be candidate for a Superior Court judgeship in the 4th Judicial District….former Fairbanks mayor, John Eberhart. You know him, the sleazeball who made the taxpayers pony-up his $25,000 legal bill for his $50 fine by the State for illegal campaigning while running for mayor.
Joe Miller’s wife sat on the Judicial Council when Eberhart was campaigning for a seat on the Superior Court. Fortunately, Joe’s wife remembered that Eberhart was a sleazeball Democrat and she lobbied within the Council for Eberhart to attend Ethics courses at the ABA, followed by some jail time at FCC. Eberhart left town and moved to Australia under an assumed identity.
As Joe Miller will attest, revenge can be sweet.
Spoiler Alert!
Eberhart was seen in Outer Tasmania where he is hiding from some confrontational Fairbanksans who want their money back. Eberhart still desires a judgeship in Alaska, and is willing to work pro team via Zoom, or anything, including bribing the Judicial Council for a last ditch shot at owning his own gavel.
Tell Eberhart he can use his own gavel to pound sand. Eberhart is a four-time loser who had lots of experience hiding behind his mother’s skirt. A pure coward!
Spot on Bill. Satterberg for Alaska Supreme Court. Let’s bring some conservative thought into the judicial system
Over the past thirty or so years, I have responded to about five percent of the Bar polls that have been sent to me. “Peer review” is little more than “pal review” and those that work in the Department of Law and the Public Defenders and Public Advocates offices have many more pals than I ever will. Take a look at the background of sitting judges and this will become obvious. As serious as this deficiency may be, an even bigger problem is the ability of the “pals” to control the intellectual diversity of those whose names are forwarded to the Governor for consideration. Frankly, the chances that a conservative will ever do well in a Bar poll are remote. In general, the “pals” view conservatives as intellectually and even morally flawed and those of the Left as enlightened, gifted and just. The public’s regard for judges is declining. At one point, it appeared that no Superior Court judge standing for retention in the last election was supported by a majority if voters from the Mat-Su area. That is very difficult for the judges to explain away. The system is broken.
The real flaw and insanity of the system is in the ridiculous assumption that anyone who has risen to the level of being considered for a position as a Superior Court judge is somehow free of political biases. In today’s world of creeping leftist authoritarianism, in which, as in the Soviet Union, almost every action and act of living has been made to be a political statement, that assumption is even more ridiculous.
At the very least stagger the terms of Justices so that 20 judges don’t all come up for retention at the same time. The public’s eye’s glaze over when they are confronted with a Ballot with that many names on it. Of course, this is probably done on purpose so as to prevent any meaningful vetting of judges to take place. Also, these judges work for the people – restore the majority of members on the Judicial Council to the public or dissolve it. We have slowly been relinquishing our rights to the bureaucratic class in Alaska & the nation & they have certainly proven that they are not worthy of the responsibility.
There’s a solution, but it will take a Constitutional Convention to solve (next opportunity is on the 2022 ballot):
If these black-robed politicians want to be politicians, perhaps its time to start electing them. Run for office every 2/4/6 years depending on which level of court they serve in. Term limit them to 2 consecutive terms in the same office and throw the entire mess to the public. This shuts down the judicial council entirely. Cheers =
Very good article Bill, thank you for sharing your insight.
And this is exactly how we arrived at the situation where the Court reviewed Prop-2 and approved it, although it clearly violated the “one change per proposition” rule.
When we have lawyers picking judges, the tail is wagging the dog. I’d almost call it a conflict of interest, and it needs to stop. NOW.
Exactly!
” In general, the “pals” view conservatives as intellectually and even morally flawed and those of the Left as enlightened, gifted and just.”
^^^That’s it in a nutshell. Similarly, the long-term practitioner (who doesn’t have a long history in any of the public litigation offices) is seen as incomplete and not worth serious consideration for the bench.
Agree. Its sort of like being the lone Conservative in a Political Science class full of Leftists. Better to focus on passing the class and move on.
Former Respected Judge Vochoska was a very popular judge in the seventies. He was voted out by the people, because of his leniency to juvenile offenders. The dance a judge has to do is much greater and varied then just law school lays out. It’s how you treat people in front of and behind the scenes. Like Merrick Garland, who supported the 1st and 2nd Amendment and was a shining example as a district attorney and crimial defence lawyer, he could not make it through the gauntlet. And everyone, is talking about recidivism and rehabilitation when we should be talking about relocation. There are adolescents who are out there that are not rehabilitated and communities who are supporting those kids. We’re basically saying, we have a Bible Community and working mens’ community, where it is not against the law to drink at a bar all night, or leave older kids unattended because another person or family is going to pick up the tab. Alaska is Sparta, men are pushed to the edge physically to keep Alaska running, from transportation to industry and with it comes the cost which requires a helpful community. Putting the needs of Alaska’s unique society needs to be linked to child advocacy and tribal courts. A judge has to follow the trend of the people and be commited in such a way for the people, like the Chancellor Andrea Merkle of Germany is. Margaret Thatcher set the same tone and so did Ramona Barnes. As a man or woman, are you willing to make the sacrifice of time and leadership to your fellow man? Man and women like commitment. Equal representation must happen. People rejected Tony Knowles too (Harvard) for continued leadership, even though he left his mark on every coastline trail in the MOA.Citizens are finicky and regardless of what Ivy League school you went too they want a someone who represents their idocycracies. And Alaska is the home of the people who are odd and diverse. And, in their time on the bench express a type of undercurrent of civil unconsciousness, that only someone who is committed to the scales of justice will do. They want a Lady Liberty. It was the intent of the Alaska Constitution to have a multi-layered approach to sorting through whether a candidate would be appropriate for the bench. Reducing the process to a council is like assigning a sub-commitee. If you really want it, you will jump through the hoops and then when you get there, like the Supreme Court, you’ll be on the pulse of what is right for society. Being petty because you can’t get the job just means you are destined for something better.
I’m no attorney but will make this one comment. Until there is a way to filter out the judges who have nothing but contempt for the U.S. Constitution, we will never have true justice. Justice is supposed to be blind with no preconceived bias. Social justice has no place in our justice system because it backs an ideology that is foreign to equal justice under the law. Just the facts weighed against legal precedent and written law. That’s it! The activist judges in the nation should summarily be given their walking papers.
Comments are closed.