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An overview of the whole judicial selection and retention process in Alaska reveals a rather elegant balance of interests in the formal structure of the appointment process, with opportunities provided for participation by all three branches of government as well as the public. The framework was intentionally set up to avoid a politicized judiciary, with the Alaska Judicial Council established as an independent body bearing the pivotal responsibility for determining the makeup of the judiciary. Over the last several decades, the administration of the process by the Judicial Council has become very broadly based and transparent, with input on candidates solicited from many directions, in many forms.
In delineating the general framework for the state’s judicial branch within Article IV, the Alaska Constitution establishes the Judicial Council as the nominating body for judicial candidates, while also providing for the participation of all three branches of government at one or more points in the judicial appointment process.
The Judicial Council comprises three attorney members, to be named by the Board of Governors of the Alaska Bar; three non-attorney members, to be selected by the governor and approved by majority vote of the legislature in joint session; and the chief justice of the supreme court, serving as chair (Figure 1). Appointments to the Council are to be made with consideration for area representation and without regard to political affiliation. Attorney and non-attorney members serve six-year staggered terms, while the chief justice serves during the three years of his tenure in that position on the supreme court.
The constitution requires that the governor appoint a judge from a list of two or more candidates selected by the Judicial Council, and it further requires that judges stand periodically for retention in non-partisan general elections, providing the electorate with an opportunity to express its approval or disapproval of a judge’s performance.
The minutes of the constitutional convention reveal that the drafters of the document wished to avoid either a system dominated by partisan appointees or a judiciary involved in election politics. They also wanted to forestall the establishment of an entrenched judiciary beyond the reach of community opinion.
Figure 2 presents the main steps in the judicial selection process. Much, although not all, of the process is open to observation by anyone, and the Judicial Council vote selecting final candidates is taken in public session. The process draws in evaluative material from all Alaska Bar members who choose to participate, as well as from members of the public, who may submit letters and comments to the Council. In addition to assembling evaluative material from a spectrum of sources, the Council also assesses a writing sample submitted by the candidate and conducts a thorough background check—examining credit and financial history, any criminal history records, and professional history: the type of background check commonly performed for many government positions.
The Judicial Council’s process has evolved over time, primarily by broadening the base from which information about a candidate’s qualifications and suitability is drawn and by becoming more open to observers. The emphasis in selecting final candidates is on professional qualifications and personal suitability to the role of judge. This purpose directs the evaluation of the material assembled on the candidates.
The most elaborate tool used in evaluating candidates is the bar poll. This is a written survey sent to all members of the Alaska Bar. Respondents rate each candidate on a five-point scale according to the categories of professional competence, integrity, fairness, judicial temperament, and suitability of experience and also assign an overall score.
Each respondent indicates the basis of his or her evaluation of a candidate—whether it stems from direct professional experience, professional reputation or social contacts. While all numerical results are tabulated and available for review by anyone, the Council uses only the numerical results from those with direct professional experience in its evaluation.
The survey also collects background information on survey respondents: type of practice, years of practice, judicial district, gender, age and so on. The Council releases all numerical data on both candidates and survey respondents to the public—primarily through its website. It is possible to learn, among other things, how many bar members in each district evaluated a given candidate, what the average scores for each candidate were, and what the overall score was.
In addition to the quantitative evaluation, bar poll respondents also may submit written comments on a candidate’s suitability—either anonymously or signed. The Judicial Council reviews these comments and discusses them with the candidate but they are not released to the public.According to numbers assembled informally by the Council, bar survey responses have ranged from a low of around twenty percent to a high of around forty percent, with the average in the high twenty percentile range, with rates for the district containing the vacancy usually substantially higher than those for the other districts.
The results of the bar poll are a major component in the Judicial Council’s evaluation of a candidate but, as Figure 2 shows, not the only one. After interviewing each candidate, the Council as a whole meets and discusses all of the material available on each candidate and eventually votes in open session.
The Constitution requires the Council to forward the names of at least two nominees to the governor, but in practice the length of the final list varies. According to Council records, it has been as large as thirteen—when there were several Anchorage superior court vacancies—and as many as nine names for just one position have been sent to the governor. It has also happened that the Council decided against forwarding the names of any candidates and reopened the application process.
Along with the names of the final nominees, the governor receives the entire contents of a candidate’s application, the public portion of the bar survey, and any confidential material released by the nominee, including reference letters sent to the Judicial Council. The Constitution requires the governor to select from the list within forty-five days. There are no other requirements associated with the governor’s final selection, although some governors interview final nominees. The public is free to communicate with the governor’s office at this or any other stage.
One of the intents of the participants in the constitutional convention was to avoid an entrenched judiciary, such as can evolve with lifetime appointments—as in the federal system. Participants also wanted to avoid having the judges involved in political elections. The compromise was to require that each judge stand for retention in a non-partisan election held after various periods of service (Figure 3). These non-partisan retention elections are conducted as part of the state general elections.
The Judicial Council also has a role in the retention election process: it makes recommendations for or against retention; releases these recommendations publicly; and sends them to the Division of Elections by a prescribed date.
To a great extent, the process for retention election parallels that for selection—as discussed above. The most significant difference is that to evaluate a judge’s suitability for retention in the position the Council seeks direct input from an even wider spectrum of sources. The retention election survey is sent not just to bar members but also to other groups who have had the most opportunity to work with and observe a judge—police and probation officers, guardians ad litem, CASA volunteers, social workers, and court employees—although not all of these groups complete all portions of the survey. Jurors who have sat on cases before a judge can also contribute evaluations. Again, the Council releases numerical results from the survey to the public.
The background work done by the Council includes, among other things, looking into peremptory challenge numbers and appellate confirmation rates.
The Council also holds a statewide public hearing to elicit public comments on the candidates, and it considers the information assembled by independent volunteer organizations, such as Alaska Judicial Observers, which evaluate the courtroom work of the judges.
The Council votes in open session on whether to recommend retention. In the years since statehood, the Judicial Council has recommended against the retention of a handful of candidates—with at least one still being retained in the general election.
The responsibility for the actual conduct of the retention election lies with the Division of Elections, which publishes the Judicial Council recommendations and supplementary materials in its voter’s pamphlet. Judges standing for retention election must formally declare their candidacy with the Division by a prescribed date: this is a requirement separate from the Judicial Council process.
Retention elections are non-partisan: judges cannot campaign and there is no competition for a given position. Judges are, however, permitted to respond publicly to challenges mounted against them preceding the election.
During the controversy that arose earlier this year around judicial selection, there were a number of concerns voiced about the process. Some of these questioned the framework as established by the Constitution; others criticized the actual process more directly. Some comments were made—in the press and in the legislative hearings conducted—regarding a lack of transparency in the selection process. In reality, while some aspects of the selection process and some of the material collected on a candidate are kept confidential, this seems to be a well-ventilated process overall—particularly when seen against that of other states, some of which do not even make the identities of candidates known. (See accompanying article, “Judicial Selection in the U.S.”) The Judicial Council uses a variety of means to publicize and facilitate its process—primarily print media and the internet, but also mailings and broadcast media—and the public has multiple opportunities for participation.
The Council itself was criticized for its political and philosophical bias, but the criticism seems unfounded when the basis for the composition of the Council is examined: given the means of appointment and the length of term of the various members and the appointing agents, no particular political or philosophical approach can dominate its membership for very long.
It was also asked if the selection process might be intimidating to applicants. It is a fact that the procedures are undeniably lengthy and in-depth, but it is hard to see how the process could be otherwise and still permit a thorough examination of a candidate’s background and qualifications.
Another thread in the public discussion concerned the term most-qualified. The Judicial Council’s bylaws require it to send to the governor the names of the most-qualified applicants—rather than just all qualified applicants. This requirement actually can work to make the final list longer than two names. In adopting this bylaw, the Council was acting in accordance with its role as established within the Constitution to carry the weight of the selection responsibility. A mostly semantic discussion also questioned the definition of the term most-qualified. In practice, the Judicial Council does not set specific numbers or a specific list of background qualifications—beyond the minimum required by law—when it begins to consider candidates for a position. Its practice is holistic: it looks at the entire pool of candidates for a particular position, examining each candidate in-depth.
The Council itself has conducted some research on its own procedures on a sporadic basis, often in response to requests for data from the legislature. It also published a more thorough statistical look at the selection and retention processes and results in 1999: “Fostering Judicial Excellence: A Profile of Alaska’s Judicial Applicants and Judges.” This study of data on candidates and judges looked statistically at the education, legal experience and personal characteristics of those who had applied for judgeships since 1984. The findings showed that bar survey scores and other survey-related variables were the variables most likely to be related to the nomination and appointment of applicants, with those scoring higher on the bar poll statistically more likely to be nominated and to a lesser extent, appointed. Writing ability, as assessed by the Council through a candidate’s writing sample, also showed a relationship to selection, with higher writing scores associated with nomination and appointment.
The study examined the performance of judges, as measured by their evaluation surveys and the votes received for retention in the general elections. The statistical analysis of retention surveys and election results suggested relatively high levels of public approval of judicial performance. Moreover, judges who had received relatively high scores initially on the selection poll tended to receive high scores later on retention surveys, suggesting that the bar survey for selection does predict a certain level of competence.
Beyond the Council’s own research, little evaluation of the Alaska selection and retention processes has been done, and there seems to be a need for additional formal examination of their patterns and history to see how the framework has held up over the last four and a half decades.
There is, however, some information from another state body that throws light on the ultimate outcome of the current selection and appointment process. Data from the Alaska Commission on Judicial Conduct—the state body overseeing the conduct of the judiciary—shows that the Alaska judiciary has been exceptionally free of disciplinary and ethical problems. Since the early 1970s, only six judges have received a formal public sanction—the most severe form of discipline for professional misconduct—from the Alaska Supreme Court. The formal public sanctions have usually been in response to some form of public misuse of the office. The last sanctioning took place in 2000. The sanctions handed down from the Supreme Court have involved either public censure or public reprimand, but not removal from office—which would be the ultimate disciplinary action. Since statehood, no Alaska judge has been removed from office.
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Has this selection process established by the state constitution and elaborated by state statutes been effective? The careful balance of the current selection process forestalls any strong possibility that a judge will be under obligation to a particular political interest group. The judiciary remains essentially unpoliticized in its daily functioning, and, since statehood, there have been few public scandals involving judges. The electorate remains as a check on the judiciary and on the appointment process itself. Although there is some need for more evaluative research, both statistical and historical, currently available statistical data show a relatively high level of public approval of the judges appointed under the current process. It is also worth noting that despite instances where the retention of an individual judge has been opposed by one interest group or another because of an unpopular decision, the retention elections have not become extraordinarily expensive fights or involved extreme political posturing—unlike in other states. Judges do, however, stand for retention, and the electorate is free to deny it.
Editorial note: The UAA Justice Center has in the past served as the independent contractor for the Judicial Council in tabulating bar poll results for both judicial selections and retention elections.
Antonia Moras is the editor of the Alaska Justice Forum.