It’s time to reform the way we select judges

Urge your senator to support SJR 21

One of the best government reform proposals we’ve seen in years is currently being debated in Juneau.  Senate Joint Resolution 21 would make a simple but profound change to the Alaska Judicial Council: it would add three new public members to this panel that nominates judges to serve in our court system.

SJR 21 would transform the Alaska Judicial Council into a citizen-controlled panel, instead of a panel dominated by elite attorneys who are completely unaccountable to any democratically elected official in the state. 

TAKE ACTION NOW:  Click here to contact your Senator.  Urge them to support SJR 21.  If your senator is already a SJR 21 cosponsor, please thank them.  The senators we need to thank are: Pete Kelly (prime sponsor), Cathy Giessel, Mike Dunleavy, and Lesil McGuire.  If your senator is not on this list, please ask them to sign on as a cosponsor of SJR 21.

Why is SJR 21 so important?

The Alaska Judicial Council (AJC) is like the proverbial “800 lb. gorilla” in our state’s government – and yet many Alaskans are only dimly aware of the enormous power that is wielded by this 7-member panel.

When a vacancy occurs on a court, those who wish to serve on the bench must first apply to the AJC.  Only those applicants who win the “yes” vote of a majority of Council members can be nominated for a court position.  Those names – the nominees – are then submitted to the Governor.  The Governor makes the final decision – but he or she can pick only from the list that the Council submits.  The list is typically short, often just two names.

The AJC’s process of selecting nominees for court positions is shielded from the public, as the discussions always occur in secret, behind closed doors.  No other entity of state government operates with this level of secrecy.  The public usually has no clue why certain applicants are ruled in, or ruled out.  The process by which we pick judges in Alaska is the least democratic, least transparent, and least accountable of any process that we use to select public officials in any part of state government. 

So who are the members of the Judicial Council?

The AJC is made up of three attorney members, appointed by the Alaska Bar Association (ABA), and three non-attorneys (“public members”) who are appointed by the Governor and confirmed by the Legislature.  The Chief Justice of the Alaska Supreme Court serves as the 7^th member – but votes only when it changes the outcome, such as to break a 3 to 3 tie among the other 6 members of the Council.

The Council is dominated by the “insider politics” of the Alaska Bar Association – because they get to pick three of the Council members, and the Chief Justice (a lawyer, of course) is also a dues-paying member of the Bar.  So, four out of the seven members are part of the ABA.

Not a single one of the attorney members of the Council is chosen by the people.  Not a single one is appointed by the Governor.  Not a single one is voted on by the Legislature.  In other words, they are completely unaccountable to anyone in the state who actually won an election.

How does SJR 21 improve the current system?

SJR 21 takes a small but important first step toward making our court system more accountable to the people.  Senator Pete Kelly’s resolution proposes to double the number of public members on the AJC – from three to six.  This requires an amendment to the constitution.  So if SJR 21 wins legislative approval, it would appear on the ballot for Alaska voters to have the final say.

This would fundamentally transform the Council from a panel dominated by legal elites into a panel dominated by members of the public.  Unlike the Bar members, the public members have to be appointed by the Governor and confirmed by a majority of the Legislature.  In other words, “we the people” – through our elected representatives – will have a much greater voice in helping determine the composition of the panel that largely controls the third branch of government.

Adding more public members will also address a serious problem with “bloc voting” by the attorney members of the Council.  There have been five occasions in just the last two years where all three public members voted YES to nominate highly qualified applicants for several different judicial vacancies – but all the participating attorney members voted NO.  In each case, the Chief Justice sided with the attorneys and voted NO – thus ensuring that the Governor would have fewer options for filling seats on the court. 

Incredibly, of the five cases mentioned above, three of them happened with nominations to the Alaska Supreme Court – the highest and most powerful judicial panel in the state.  When the Chief Justice votes in these situations it presents an obvious conflict of interest.  By ensuring that certain applicants can never be appointed by the Governor, the Chief Justice is directly helping pick her future colleagues on the Supreme Court – and influencing the judicial philosophy of the entire court system, since lower courts are bound by rulings of the Supreme Court!

The Chief Justice can assert this power only when there is a tie vote – and Senator Kelly’s SJR 21 makes tie votes much less likely.  By increasing the number of regular voting members from six (an even number) to nine (an odd number), the statistical odds of a tie vote occurring are slimmer.  Further, doubling the number of public members will make it impossible for the attorney members to “force” a tie vote by bloc voting.

SJR 21 has been unfairly criticized by liberal activists as just an attempt to “pack” the court with a bunch of conservative judges.  But this is nonsense: all three current public members of the Council are appointees of Republican governors (one by Governor Palin, two by Governor Parnell).  And yet a review of their votes shows that they routinely vote to nominate qualified judicial applicants – including both liberals and conservatives.  Isn’t that the way it’s supposed to work?

It’s the Governor’s job – not the Judicial Council’s – to weigh judicial philosophy and political views in making judicial appointments. We’ve had Republican governors and Democratic governors in our recent history.  Do they make very different appointment decisions?  Sure they do.  That’s called democracy.  In a democracy, we get the government we deserve – for better or for worse.  We can live with that.  But we should not tolerate a system where we actually get a worse government than what we deserve – and that is exactly what is happening in Alaska right now with our unaccountable and arrogant court system.

Senator Pete Kelly, the author of SJR 21, summed up what this resolution intends when he addressed the Senate Finance Committee:

“What we wanted to do is make sure that, if we’re going to have a system where essentially members of a guild are given such power to choose a branch of government, and they are not required to go through confirmation hearings like everyone else is – I mean, the Board of Hairdressers has to go through confirmation hearings, but they don’t! – and the people that they nominate, their selections don’t go through a confirmation hearing, that somewhere in there we better make sure the constitution tethers this organization to the people in some way.  And that we prevent, if we can, this tie-vote scenario from happening where public members are overridden by people who never stand before the public, not for a single minute, for their confirmation.”

Once again, please take time now to contact your Senator and urge their support for SJR 21.  Because this is a constitutional amendment, it requires a two-thirds supermajority to pass, which means 14 YES votes in the 20-member Senate.  The members of the Senate need to hear from voters who care about this issue, make sure your voice is heard today!