Three defend Alaska’s judicial selection process

When Alaska constitutional delegate Ralph Rivers spoke in 1956 on the duties of the Judicial Council empowered by the then-new state constitution for choosing members of the state government’s judicial branch, he described it as a way of finding “the tallest timber” — that is, the most qualified judges — for constructing Alaska’s courts. The phrase was quoted by Alaska Senior Judge Elaine Andrews and two other speakers during a luncheon talk at the Kenai visitor center on Tuesday, where the subject was judicial selection in Alaska, and a proposed constitutional change to the makeup of the Judicial Council responsible for that selection.

The Judicial council is a seven-member voting body composed of three attorneys selected by the membership of the Alaska Bar Association, three non-attorneys appointed by the Governor and confirmed by the legislature, and the chief justice of the Alaska supreme court, who serves as chairperson but only votes in order to break a tie. According to its website, a task of the council is to “screen applicants for judicial vacancies and nominate the most qualified applicants for appointment by the governor.”

In this year’s legislative session, Senator Pete Kelly, R-Fairbanks, introduced Senate Joint Resolution 3, proposing a constitutional amendment that would change the structure of the council to include three additional Governor-appointed non-attorney members, as well as requiring legislative confirmation of the attorney members elected by the Alaska Bar Association. The three speakers at the chamber luncheon — Judge Andrews, Judicial Council executive director Susanne DiPietro, and attorney Don McClintock of anti-SJR 3 group Justice Not Politics — said that by giving the governor’s appointees a majority on the Judicial Council, the bill would weaken the council’s independence.

Andrews spoke first on historical roots of the Judicial Council in the Alaskan constitution and the intent of the constitutional delegates to keep courts detached from political party affiliations and to ensure that judicial selection was “merit-based.” Andrews said that Alaska judicial selection process wasn’t broken, and didn’t need to be fixed.

“As chair of the Fair and Impartial courts committee for the Bar Association, I urge you to recognize the value of fair and impartial courts, and our current constitutional framework that protects that value,” said Andrews. “No changes are needed to our constitution in that regard.”

DiPietro detailed the operation of the Judicial Council, emphasizing that its procedures required thorough data collection including the submission of a 24 page application by the nominee, testimony from both colleagues and former opponents in court, a survey asking all Alaska Bar Association members who’ve worked with the prospective nominee to evaluate his or her qualities on one-to-five scale, and an interview.

“One judicial applicant said it’s like they turn you upside down and shake you until all the pennies come out of your pocket,” DiPietro said.

During her talk, DiPietro addressed one of Kelly’s justifications for adding members to the Judicial Council. According to his sponsor’s statement for SJR 3, Kelly claimed that the possibility of splits between attorney and non-attorney members allows the tie-breaking Chief Justice to effectively choose judges. DiPietro said that of the 1149 votes made by the council since 1994, only 16 have led to votes split between the attorney and non-attorney members of the council.

In a later interview, she addressed Kelly’s claim that split votes between attorneys and non-attornys have become more frequent in later years. According to Kelly’s sponsor statement. five split votes had occurred between June 2012 and October 2013, in which the Justice broke the tie in each case by siding with the attorney members to deny the applicant. DiPietro said that while the number of split votes in recent years has increased, it is in proportion to the total number of votes that the Judicial Council has made.

McClintock, in an interview after the talk, said he himself was an unsuccessful judge applicant to the Judicial Council and knew firsthand that the process was as “grueling as Susanne described.”

McClintock elaborated on why he thinks the present system is successful.

“You have public input through the three governor lay-appointees, then you have the Bar Association, who are supposedly more capable, through direct experience, of evaluating how the candidates performed as lawyers,” he said. “And that kept it focused not on partisanship or political position, but on merit. We think that process (proposed in Kelly’s amendment) unduly politicizes the issue.”

McClintock urged public involvement in the issue.

“I feel that it’s important to stand up and advocate for a system that I think has served our state really well,” said McClintock. “It’s not one of those sexy issues where everyone gets excited right away—it does take a fair amount of background and education. So we’ve it made it a mission to just get as much information out to people, and hopefully get people interested in why our system works, and works so well.”

SJR-3 is currently being read by the Senate State Affairs Committee, and will later pass through the Judiciary and Finance Committees. If it passes the legislature, the proposed amendment will become an item on the next general election ballot.

 

Reach Ben Boettger at ben.boettger@peninsulaclarion.com

 

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