Judging Our Judges

This op-ed was originally published by Must Read Alaska on November 10, 2022.

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.

Furthermore, since the Governor can only choose appointees from the list provided by the Council, legislative confirmation, if ever instituted, would be more of a nuisance rather than a check and balance.

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 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.