Voices of Alaska: Decision on judge retention should be well-balanced

  • By DON MCCLINTOCK AND ELAINE ANDREWS
  • Monday, October 10, 2016 8:58pm
  • Opinion

We would like to respond to Jim Minnery’s October 5th opinion piece, Voices of Alaska: Judges Wrong on Parental Notification Ruling. We agree with Mr. Minnery that all Alaskans need to vote the judicial retention slate on November 9th; but we disagree with his imperative that your vote should be determined by religion.

We had the privilege and pleasure of addressing a joint meeting of the Kenai and Soldotna Chamber of Commerce this past February. The subject of our address was Alaska’s highly respected merit-selection process for appointing judges. We described the intensive evaluation process that judges face when seeking to be retained, that is, when Alaskans vote on whether judges can continue their tenure. Alaska’s merit selection and retention process was designed to promote a judiciary selected on merit, not political favor or political bias. Judges should be retained (or not) because they have met, or failed to meet, stringent evaluation requirements on the core aspects of judicial performance: diligence, integrity, legal ability, impartiality/fairness, judicial temperament, and overall performance.

Needless to say, the matters that come before our courts, especially our highest court, are complex, and difficult, often demanding courage to do what the law compels the judge to do, even if it unpopular. And not all judges reach the same conclusion when struggling with these weighty issues. What we ask the judges to do is to follow the constitution of the United States and the State of Alaska; and this is equally true whether deciding on matters of commerce or the rights of parents and children and regardless of whether the topic is controversial. A judge cannot apply their religious or personal beliefs to the matter at hand if they conflict with the demands of our constitution. It is with these questions that judges need to draw deeply upon their personal traits of integrity, impartiality, intellect and fairness; and these are the traits they should be measured by to be worthy of their job on the bench.

But the author wants you to apply a different standard. He urges you to vote a judge out of office if you disagree with a single decision of a judge, even if the judge thought it was constitutionally compelled, even if they had a lifetime of exemplary service and impeccable, careful compassionate decisions to their credit. And that is because as Mr. Minnery states:

In the Bible, the essential role of judges was to rule according to a law external to themselves. God told Ezekiel that the priests would act as judges saying “In a dispute they shall take their stand to judge; they shall judge it according to My laws and My statutes.” Ezekiel 44:24. Judges do not act above the law. They are under the law of a Holy God.

In our constitutionally-based democracy, judges do rule according to “A law external to themselves” — it is called our Constitution. Mr. Minnery’s theocratic vision is at odds with a fundamental component of our country’s founding —— separation of church and state. The author urges that Alaskans vote against judges who do not decide in accord with his deeply held religious beliefs.

We urge you to apply a different standard to this decision. With our important right to vote on judicial retention comes the responsibility to understand who the judges are that you are asked to vote on. We believe we should evaluate our judges based on important judicial qualities that are exercised over hundreds or thousands of cases, not on a single decision or single issue. Our state is better served if we free our courts from single issue partisanship.

The Alaska Judicial Council provides an extensive evaluation of all the judges up for retention. That evaluation is the result of what Alaskans have to say about that judge…the attorneys, the jurors, law enforcement, social workers, and the public at large. All of that information is very accessible and interesting and worth a visit to the Alaska Judicial Council website at http://www.ajc.state.ak.us/2016-retention-election. Or, wait for your voter pamphlet and read about your judges and vote with confidence that you know how the judges in your community are rated. You get to decide. Please make sure you vote so this important decision is not left in the hands of a few.

Donald McClintock is a lawyer who has practiced law in the commercial sector for more than 35 years. Elaine Andrews is a retired superior court judge who served for more than 20 years on the bench. Both are members of the Alaska Bar Association’s Committee on Fair and Impartial Courts.