Win Gruening: Judging our judges, balancing the judicial selection process

33
1068

By WIN GRUENING

Based on preliminary election results, it appears Alaskan voters will once again reject holding a state constitutional convention. That doesn’t mean the reasons many voters favored the idea were invalid. A flood of outside dark money directed towards “Vote No” dwarfed the “Vote Yes” effort.

Potential issues addressed at a constitutional convention run the gamut, but how judges are selected ought to top the list.

Contrary to assertions of its boosters, Alaska’s method of selecting judges can be and should be changed.

I appreciate some aspects of Alaska’s current judicial selection system. Unlike some states, our judges are not elected. Nor, like federal judges and U. S. Supreme Court justices, are they appointed under a system where selections primarily come down to perceived ideological lines. State judicial selection systems operating exclusively this way can legitimately be critiqued for tilting judge selection (and retention) toward a political free-for-all, exposing judges to potential pressure from legislators, voters and donors. 

Alaska’s system was intended to avoid these pitfalls by employing a 7-member commission that vets candidates for selection and publishes judicial ratings for voters when judges come up for retention.  

The commission, the Alaska Judicial Council, was created by the Alaska Constitution and is comprised of three non-attorney members chosen by the Governor, three attorney members chosen by the Alaska Bar Association, and the Chief Justice of the Alaska Supreme Court, an ex officio member who serves as chair. After researching each applicant and anonymously polling all active, inactive, and retired members of the bar residing in Alaska, the Council chooses at least two candidates for each vacancy and forwards the names to the Governor.  The Governor must appoint from that list. 

This sounds non-partisan, but it would be a mistake to think the process isn’t political. When Alaska’s Constitution was drafted, the Alaska Bar Association and its national counterpart, the American Bar Association (ABA), were considered impartial and non-partisan.  Not anymore. 

Indeed, the American Bar Association has a history of taking liberal positions on issues including abortion, the death penalty, same-sex marriage, affirmative action, and the Second Amendment. The organization has long been accused of maintaining a bias towards liberal judges that has skewed its ratings of judicial nominees towards the left. By any objective standard, this is undeniable.

To see where the Alaska Bar Association is coming from, look no further than Elie Mystal, the featured speaker at their October state convention held in Anchorage.

Mystal, a graduate of Harvard College and Harvard Law School, is a political commentator, guest pundit on MSNBC, and self-described liberal.  As the  justice correspondent at the uber-progressive magazine, The Nation, he is an outspoken supporter of liberal causes. In a recent appearance on The View, Mystal described the U. S. Constitution as “actually trash”.  

He is the author of “Allow Me to Retort: A Black Guy’s Guide to the Constitution,” which is described as an “easily digestible argument about what rights we have, what rights Republicans are trying to take away, and how to stop them.”

The bar association’s keynote speaker, Victoria Nourse, a law professor and director of Georgetown Law’s Center on Congressional Studies, was nominated for the 7th Circuit Court of Appeals by Barack Obama and also served as Joe Biden’s 2015-2016 chief counsel. In her book, Misreading Law, Misreading Democracy, Nourse “offers a new take on an old worry…that five unelected Supreme Court justices can strike down laws reflecting the will of millions of citizens.” 

No doubt these speakers are considered brilliant legal scholars by many lawyers but one wonders, how often do they entertain opposing points of view? Last time I looked, the Supreme Court’s job is to uphold the law — whether statutory or constitutional — as it actually exists, not enforce “the will of millions of citizens.”

Remember, four of the slots available on the Alaska Judicial Council are permanently designated for attorneys (including the chief justice who votes in cases of ties or 3-2 votes).  Regardless of which elected party is in power, the council is guaranteed a majority that is forever controlled by lawyers selected by the Alaska Bar Association. It’s self-evident that lawyers of similar political leaning appointed to the council and polled by the council will prefer like-minded attorneys to be considered for judgeships.

The favored role given the legal profession in selecting judges has also played out on the national stage.  Up until 2001, presidents submitted federal judicial nominees for vetting by the ABA before official nomination. President George W. Bush ended this practice because it gave inappropriate and unfair voice to the ABA in public affairs. The practice was re-instated by President Obama in 2009 and then reversed again by the Trump Administration. In a departure, however, the Biden administration decided even they couldn’t justify the practice and also spurned the ABA’s rating system.

Regrettably, national recognition of the prejudicial influence attorneys have had on judicial appointments has not resulted in similar action in Alaska. 

Eliminating the legal profession’s gatekeeper role on judicial nominees will provide needed balance more closely reflecting the intent of our founding fathers – a balance that tips in favor of people’s representatives accountable to the public.

We don’t need a constitutional convention to address this problem. The Legislature can draft a constitutional amendment subject to voter approval limiting the role played by the Alaska Bar Association in the final selection process.  

Nominees forwarded to the governor will then reflect a true range of choices, instead of just those favored by lawyers handpicked by unelected members of the Alaska Bar Association.

After retiring as the senior vice president in charge of business banking for Key Bank in Alaska, Win Gruening became a regular opinion page columnist for the Juneau Empire. He was born and raised in Juneau and graduated from the U.S. Air Force Academy in 1970. He is involved in various local and statewide organizations.

Reasons for ballot rejection: Signatures, postmarks

33 COMMENTS

  1. I for one voted for the Con-Con, this issue being my greatest concern. There are currently 2489 registered lawyers in Alaska and 436,315 adults (18+ old). Win, why should lawyers have 4 out of 7 votes on the Judical Council? Are there smarter than the rest of us Alaskans? I think the Judical Council should have only one Alaska Bar lawyer. Lawyers currently have an outsized ability to pick OUR judges.

  2. We had the chance to deal with this issue (and many others) and didn’t take it.

    In fact, we peed ourselves in a frenzy to not grasp the opportunity.

    Accept it, Win. Alaska wants incompetent corruption in its government.

    It will be funny to watch how people wiggle when they start complaining about PFD theft. The complainers had the chance to fix it. They didn’t.

    • The con-con isn’t or wasn’t the be all end all. We have other avenues, you’d have us all give up to the leftists…makes a guy wonder about your motivations. You are clearly defeated and wish for others to join in your defeatist attitude that allows for leftists to prevail. Seems like we known which direction you feel we should head, why not just admit to yourself where your allegiance lie?

      • Your comment makes me wonder about your intelligence.

        Alaska had a once in a decade chance to seize control of our government from a clearly broken system.

        People like you faced the opportunity, peed yourselves, and ran. And are making excuses for why you ran.

        Great things take great risk. Great risk takes courage. Something Alaska doesn’t have.

        I deal in reality. You seem to deal in unicorns and rainbow farts.

        Reality in Alaska is simple. Blue is ascendent. Conservatives are lazy cowards. A problem can’t be deal with until it’s recognized for what it actually is.

        If you are content being the political version of a powerless cuckhold, that’s on you. But it is a major reason why Alaska is failing.

        • Interesting projection, guy who had to respond with 2 comments totalling 8 paragraphs in a response to one paragraph comment.

          This was such a bright spot to my day. Thank you.

      • I’m curious how you think this magic can occur.

        The path is there, but the same people who refused to approve a Constitutional Convention voted in a blue (in reality) legislature. They have zero interest in supporting it.

        Conservatives are too scared and lazy to work for it.

  3. “…….Accept it, Win. Alaska wants incompetent corruption in its government……..”
    The same people who regularly vote to universally retain these judges and who voted in ranked choice voting as a great idea are the clowns who will be sending delegates to a constitutional convention. No thanks.
    It wasn’t about dark money from the dark side of the moon. It’s about trusting snakes and fools.

  4. Vote yes or no for Judges we know nothing about, total sham, they must be laughing their asses off right now. They no doubt relied upon ignorance, seems to work every time.

  5. Three comments. First, the American Bar Association is a voluntary organization that has no relationship to the Alaska Bar Association and no involvement in the selection of judges in Alaska. Second, the author’s concerns about the politics of the Alaska Bar Association are spot on. Activist attorneys and other bad actors have been allowed to influence the Alaska Bat Association in recent years. Honorable, adult members of the Bar have allowed it to happen. Third, the annual convention is an embarrassment. I have never attended.

  6. I personally can’t remember of anytime I’ve ever voted in favor of any Judge on the ballot. I’ve always felt that we never really had any reliable information on any of them, to make a conscience decision, if any of them would simply judge based on the current law and facts of the case or, if they would merely interject their own bias philosophy.
    Until I know more about a prospective Judge, I’ll simply continue to vote “NO” and would encourage others to do so as well.

  7. The constitutional convention proposal was doomed to failure because sponsors never seemed to articulate exactly what changes they wanted, or who’d organize and conduct the convention.
    .
    Government’s bad, let’s have a convention, then everything’ll have to be okay just because We The People said so?
    .
    Yes, Alaska’s Bar Association exclusively owns and operates one-third of Alaska’s government, but what can a convention accomplish if the ABA don’t approve the outcome(s)?
    .
    Electing judges may be the best solution if a clearly defined public recall process is included.
    .
    In the meantime, the fix seems as simple as replacing “shall” with “may” in Alaska’s Constitution, Article 4, Section 5: “Nomination and Appointment- The governor –shall– fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council.”?
    .
    In other words, Alaska’s Senate Judiciary Committee, Roger Holland Chair, Mike Shower Vice chair. Shelley Hughes, and Robert Myers can, at the next legislative session, offer the “shall-to-may” idea as a constitutional amendment on which people can vote.
    .
    A flood of outside dark money undoubtedly helped dwarf the “Vote Yes” effort, but in reality what could a convention have accomplished when flooded, as it no doubt would have been, by the same outside dark money?
    .
    Add the influx of unregulated dark money to the perception of an easily corruptible state election system and the result may be voters, disilluioned and potentially disenfranchised by both, may have been more comfortable with the devil they know than the devil they don’t know.

    • Insert heart surgeon instead of lawyers and judges and tell me you want the people not versed in heart surgery to tell you who should be YOUR heart surgeon.

      That’s as strange as having politicians be in charge of who gets what healthcare.

      • You have to be kidding. Because I don’t have a law degree, I don’t have the where-with-all to figure out who I want to be a Judge in our state? By the way all judges in Alaska are lawyers, have been for quite a few years. I think Maurice Kelliher at District Court Judge in Nome was last last non lawyer in the State. He retired in 1973 and was a good moral man.

        • Doug-How do you know your pastor, doctor, dentist, CPA, or school teacher is a reputable candidate to provide the services they do to you?

          Peer review and public input. I understand you want to let go of peer review, and instead choose folks with no knowledge of law to oversee the laws. Or that is what it seems you are saying.

          Why would you pick someone without knowledge in how cars work, to fix your car?

    • I agree the push for the Convention was badly served by its proponents. Mike Shower was the only person I heard articulating its merits.

      Porcaro was, but his credibility was blown to hell pushing his pet RCV. Still is. Always will be.

      Still, much bland must go to the voters. Not the ones who voted no on principle (I disagree, but respect it) but the ones who never bothered to look at the issue themselves.

      At the end of the day, in a free society it is the responsibility of the voters to learn the issues. Not the pundits. The voters.

      We have roughly 800,000 people. Around 250,000 even bothered to vote.

      Alaska voters are lazy. Conservative ones are the laziest of all.

      • Last census was closer to 700,000, but not to worry. Same census said About 200,000 of those Alaskans are under age.

        So half the adult population voted? That sounds way higher than the usual 23%.

        But yeah, nothing specific suggested to change, just open the whole thing up for change. That’s why I voted no. A rather conservative vote it was as well. By this unafilliated Alaskan super-voter.

      • Roughly 700,000 as of last census. About 200, 000 of them are underage.

        A 50% turnout of the adult population sure seems better than the usual 23%. That is given your concern above.

  8. Yes Win, The Alaska Legislature could draft a constitutional amendment to change the way judges are nominated and selected.

    What do you suppose are the odds of this actually occurring?

  9. All lawyers should be banned from politicians and being in office. They are part of the problem as everything we do now goes to court and cost tens of thousands of dollars. Not good for us ore our country.

  10. Votes and opinions have changed little every 10 years when this issue comes up and gets voted down by large majorities. The majority then gets another 10 years of whining by the minority losers.

  11. Imagine the Christmas tree that would result if the legislature did seriously consider a constitutional amendment! We’ve got about as much a chance for them to repeal ranked choice voting.

    All we voters can do for now is vote NO on retention of all judges. It’s interesting that you will probably not see the tally from that part of the ballot published.

    • I had to go to the department of elections to find the results because I couldn’t find them anywhere in any other election results. All judges were retained with anywhere from 54%-65% yes votes, seems like the amount of mid to low 50% range was the lowest I’ve seen in years. I can’t ever recall voting to retain a judge, I always vote no on retention.

  12. Although a bit of a tangent, I just finished browsing through election results on judicial retention on the Division of Elections webpage. It is possible to look at results by individual House legislative district. It is worth noting that in a number of House legislative districts – many in the Valley – ALL judges were REJECTED by the voters by substantial margins. Without lumping all voters in the Third Judicial District together, these judges would not be retained. If the members of the Judiciary were honorable and serious people, they would be thinking and talking about that situation. I have never heard it mentioned. The judges may think that voters from those areas are unsophisticated, uneducated knuckle-draggers and should be ignored. IMO, if that is the case, it tells us all we need to know about the quality of our judges.

  13. It’s a pipe dream to think that the legislature will resolve the judicial selection process problem. The Democrats are in charge of the Legislature and weak, liberal Republicans like Stedman, Bishop, Stutes, etc… keep helping them in a spirit of “bi-partisanship” under the watchful eye of hordes of special interest lobbyists and activist groups. I fear most Alaskans today are ill-equipped to make difficult complex decisions – after all, they didn’t even trust themselves with the challenge of approving any recommended changes that may have come from a con-con. Look what these same Alaskans decided in relation to the RCV debacle! With Anchorage and Juneau leading the way, this state is destined to become yet another West coast bleephole state.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.