How many of you knew Alaska was in the process of selecting a person to fill one of the most powerful positions in our state government? If you're scratching your head, you're not alone. Except for attorneys, very few Alaskans know that the process of selecting a new justice for the Alaska Supreme Court is in progress.
So how are our judges selected?
The place to start in answering that question is the Alaska Constitution, which provides that the governor shall appoint judges from a list of two or more persons nominated by the Alaska Judicial Council. Basically, the council gives a list of names to the governor, who then picks from the list. This method of selection is referred to as "the Missouri Plan," although it differs slightly from Missouri's plan. The Missouri Constitution provides that its Judicial Commission can appoint a judge from its list of nominees if the governor fails to do so. The Alaska Constitution gives no such power to the Alaska Judicial Council, and allows only the governor to appoint.
The Alaska Judicial Council says that this selection process is "apolitical" and involves "merit selection." This apparently is intended to make us feel warm and fuzzy about how nasty party politics doesn't play a part in the selection of our judges.
In reality, though, does our judicial selection process simply involve a different sort of politics that involves an elite few and is conducted secretly behind closed doors?
How does the council go about deciding who the governor can and cannot appoint to be a judge?
We know that the council accepts applications from those who aspire to be judges. The council then gathers information from and about those who apply. The information it gets comes from the applicants themselves, the public record, identified sources, public comment and anonymous sources. You read that right. Anonymous information is used to select our judges in Alaska.
That's because the council sends attorneys what is called a "Bar Survey." The Council sends an anonymous ballot to Alaska's attorneys asking them to score judicial applicants on a scale of 1 to 5 in various categories. It's supposed to be an evaluation of the candidate's legal skills and qualities based upon actual honest observation. How smart is this guy? How ethical is she? How suited is he to be a judge?
What the council gets from this supposed survey is really nothing more than a power vote by Alaska's lawyers. They score a disfavored candidate down to 1 (suggesting he's too dumb to find the courthouse), and score a favored candidate up to 5 (suggesting she walks on water).
Ask yourself this: When is the only time that those of us without law degrees cast a secret ballot for a person vying for a government position?
It's when we take a ballot into a voting booth and cast our vote. Our so-called merit selection system allows only attorneys to cast a vote regarding the merit of judicial candidates. If attorneys are the only Alaskans entitled to provide such privileged opinions about nominees for the judiciary, the part of our government charged with interpreting the constitution, why is it that many of those who wrote the Alaska State Constitution, and, for that matter, the United States Constitution, were not lawyers?
How does Alaska's method of selection compare to other states'? Well, according to the American Judicature Society, currently 26 states use an appointment process to select their judges. Of those, only 18 use an appointment process like ours, seven modify the process so as to involve the legislature, and one reverses the process so the governor nominates and the Judicial Commission appoints. Almost half, 24 states, allow the people to vote and select their judges via popular election.
Judges are some of the most powerful government figures. They transform laws and constitutions, and at times direct our executive and legislative branches on how to behave. Maybe it's time that Alaska let the people participate in the selection of their judges.
Jim Minnery is a Community Voices columnist. He is founder and president of the Alaska Family Council.
