Alaska selects and retains its judges using a merit selection system adopted fifty years ago at statehood (Alaska Constitution, Article IV, sections 5-8). Constitutional convention delegates in 1956 deliberated at length about the system that they would choose for the selection of judges. In the end they decided on the "Missouri Plan" of merit selection (named after the first state to use it), becoming only the second state to do so. The Judicial Council, a citizens' commission of three non-attorneys, three attorneys, and the chief justice, administers the system, and by statute evaluates judges' performance when they stand for retention elections. The Constitution also requires the Council to conduct studies "to improve the administration of justice," and under that aegis, the Council recently reviewed its merit selection and retention evaluation work (see Selecting and Evaluating Alaska's Judges: 1984-2007, www.ajc.state.ak.us). This article highlights a portion of the findings of the report issued in 2008.
Applicants for judgeships at all levels-district, superior, and appellate-complete a written application, submit a writing sample, and provide information and waivers that allow the Council to investigate criminal and credit history, discipline, and other matters affecting qualifications for a judicial position. Council staff also reviews public comment and the results of a survey of Alaska Bar Association members and does other investigation. The Council then meets, usually in the community of the vacancy, holds a public hearing, conducts applicant interviews, and votes on nominees. The governor then has 45 days to make the appointment.
Judicial vacancies, and applicants per vacancy, increased substantially during 1984-2007. During this same period Alaska's population grew by 30 percent from about 524,000 (1984) to 683,478 (2007). From 1984 to 1988 the Council handled 3.8 vacancies on the average each year, with 6.2 applicants per vacancy. Between 2003 and 2007, the Council handled 7.2 vacancies per year, with an average of 10.6 applicants each. The number of attorneys eligible to apply increased at a greater rate, however. There were 29 eligible active attorneys per judicial position in 1984 and 35 eligible active attorneys per judicial position in 2007. Applications increased at a greater rate for district court positions than for superior court judgeships.
The Council nominated about 38 percent of all applicants. The constitution requires that the governor shall fill any vacancy "by appointing one of two or more persons nominated by the judicial council." About 75 percent of the time the Council has nominated more than the two required candidates. Where it has nominated only two applicants, a review of the vacancies showed that many were in rural areas, with fewer applicants.
Alaska's Constitution requires that "Supreme court justices and superior court judges shall be citizens of the United States and of the State, licensed to practice law in the state, and possessing any additional qualifications prescribed by law." Statutes mandate that all judges be residents of Alaska for the five years immediately preceding appointment. The statutes also require three years of active practice immediately before the appointment for district court applicants, five years for superior court, and eight years for the appellate courts. Bar members, and correspondingly, applicants grew more experienced between 1984 and 2007. In the 1980's, both bar members and applicants averaged about 11 years of practice. By 2003-2007, both groups averaged about 20 years of practice. Years of practice were correlated with the likelihood of nomination, and closely tied to court level. Forty-six percent of the nominees for district court had 16 or more years of practice, as did 68 percent of the superior court nominees, and 96 percent of the appellate court nominees.
Characteristics of Applicants
The Council analyzed data from the 951 applications between 1984 and 2007 (for the report, the unit of analysis was an application, defined as one attorney applying for one position; the database included 951 applications from 461 individual attorneys). Data came from materials provided by the applicants, and accumulated during the Council's investigations. Two Council surveys of bar members (1989, 2007) about their legal practices, incomes, and other characteristics showed that applicants for judicial positions differed from bar members as a whole.
1. Age. The average age of the bar members in 1989 was 40 years old; in 2007, it was 51 years. Applicants for the district courts tended to be younger than the average bar member, with average ages of 37 years (1984) to 47 years (2007). The average superior court applicant age increased from 41 years to 50 years. Nominees' and appointees' ages resembled those of applicants.
2. Gender. In 1989, 25 percent of the bar members, but only 15 percent of judicial applicants, were female. By 2007, 35 percent of the bar members and 28 percent of the applicants (2003-2007) were female. The Council nominated female applicants at about the same rate as males: 36 percent of the females in 2003-2007, and 38 percent of the males. Governors, however, differed in the percentages of females they appointed to be judges. In 1984-1988, 9 percent of the nominees and 26 percent of the appointees were female. (In 1984-1988, only 15% of the applicants were female; the Council nominated 42% of them, which was 9% of the total number of nominees). In 2003-2007, 27 percent of the nominees and 16 percent of the appointees were female (Table 1).
Gender interacted with other variables in ways that affected the rates of applications. First, female applicants and nominees for the trial court positions tended to be younger than males. Second, and related, more female attorneys in 2007 did not meet the statutory requirements for years of active practice for appointment to the bench.
3. Ethnicity. Alaska has relatively few minority attorneys, and too few minority applicants for judicial positions to conduct any meaningful statistical analysis. In 2007, 93 percent of the bar members were Caucasian, with less than two percent Alaska Native/American Indian, and less than one percent each of Blacks, Hispanics and Asian/Pacific Islanders. At the end of 2007, Alaska had two minority judges. Thirteen minority attorneys applied for 27 judicial vacancies between 1984 and 2007. The minority attorneys were more likely to be from Anchorage, and to apply for Anchorage superior court positions, rather than district or appellate positions. Eight were nominated, and four were appointed.
4. Income. Most members of the bar earned less than the judicial salaries, for all levels of court. Attorneys who applied for district court had incomes that averaged less than the district court judge's salary. Applicants for superior courts and the court of appeals had incomes that were close, on average, to the salaries for those positions. For the supreme court, applicants were more likely to have incomes higher than the supreme court salary. Bar members' incomes and applicants' incomes varied by gender, with a smaller percentage of female attorneys in the higher income brackets. Interestingly, it appeared that a much higher percentage of males in the bar with incomes above $130,000 applied for judgeships than did females with those incomes.
Applicants' Legal Experience
Applicants' legal experiences are part of the analysis to determine who are among the most qualified.
1. Public versus private sector experience. Most applicants (two-thirds) had both public and private sector experience during their legal careers. Those with both types were nominated and appointed at slightly higher rates than they applied, as were applicants with only public sector experience. Applicants with only private sector experience declined from 25 percent in 1984-1988 to 18 percent in 2003-2007; and they were nominated and appointed at lower rates than they applied.
2. Specific types of employment and caseload. Most applicants had a mix of civil and criminal legal experience, both throughout their legal careers, and immediately before applying. More than half of the applicants had worked either as public defense attorneys or as prosecutors. The Council nominated about the same number of attorneys who had worked as prosecutors (121) as it did those who had worked as public defenders or advocates (125). Governors appointed applicants with prosecution experience (whether past or present) at higher rates than they were nominated, and appointed applicants with public defense experience at lower rates. District court applicants had relatively more recent criminal legal experience, while superior court applicants tended to have more civil legal experience.
3. Employment at time of application. A majority of all applicants held public sector positions when they applied, increasing from 55 percent (1984-1988) to 62 percent (2003-2007). Private practitioners were more likely to apply for superior court (51% of the applicants), while public sector attorneys were much more likely to apply for district court (62% of the applicants). At the same time, the percentage of private practitioners in the Alaska bar decreased substantially, from 67 percent to 58 percent. Prosecutors applied for judicial positions at a far higher rate than their representation in the bar, while public defense attorneys applied for judgeships at about the same rate that they appeared in the bar membership.
The Council's nominations and the governors' appointments appeared to be somewhat linked to employment at the time of application, although not enough data were available to show the significance of the links. The Council consistently nominated applicants from the public sector at a rate 16 percent higher than the rate at which they applied, but governors appointed applicants employed in the public sector at about the same rate that they applied, a lower rate than that at which they were nominated.
4. Trial experience, appearance in court. Two-thirds of all applicants, nominees and appointees had substantial recent trial experience-defined as six or more trials in the preceding five years. Most applicants appeared in court regularly during their five most recent years of practice.
5. Writing sample evaluation. All applicants submitted a writing sample for review by the Council, and for evaluation by staff for effective communication in writing. The scale is 1 = below acceptable; 2 = minimally acceptable; 3 = acceptable; 4 = good; and 5 = excellent. District court applicants averaged 3.5, compared to superior court and appellate court, who averaged 3.7 and 4.1 respectively. For nominees, the district court average was 3.9; superior court nominees averaged 4.0; and appellate court nominees average 4.3. The higher the score, the greater the likelihood of nomination, and to a lesser extent, appointment.
Bar Survey Ratings
The bar survey has been used since statehood, and is in many ways the most visible aspect of the judicial selection process. The Council's independent contractor maintains a series of checks to assure that each attorney is only counted once in the tabulation of results.
Attorneys provide demographic data, and information about the recency and amount of their experience with each applicant. Using a 1 (lowest) to 5 (highest) scale, attorneys evaluate the applicants on professional competence, integrity, fairness, judicial temperament, the suitability of the applicant's experience for this particular vacancy, and overall performance.
The Council only reviews scores from attorneys with direct professional experience with the applicant. It uses demographic data about different groups-judges, attorneys with primarily civil or criminal practices, men as compared to women, and attorneys in different parts of the state-to see how each assesses an applicant's abilities. Acceptable overall ratings may mask significant support or concerns among specific groups of attorneys for an applicant, and also may hide the effects of "bloc voting." Although survey respondents must affirm that they have completed their survey in conformity with their professional responsibilities, some ratings may be affected by groups of attorneys who may favor one applicant over another for reasons related more to factors other than merit.
About 30 percent of the survey respondents write comments; most identify themselves. The survey encourages attorneys to sign comments, noting that comments given to applicants are edited to ensure anonymity. Unsigned comments are not considered unless they are corroborated, independently substantiated, or acknowledged by the applicant.
Applicants with overall ratings of 3.5 or higher from the bar were nominated more often than those with lower ratings (Table 2). The appointees' scores also were significantly related to scores on performance evaluations at the time of judicial retention elections. Over time, the mean scores have increased. Between 1984 and 1988, the mean applicant score was 3.3, but between 2003 and 2007, it rose to 3.6.
Other Information Considered During the Selection Process
Council members reviewed extensive investigatory materials for each applicant, including public and bar survey comments. Council procedures preclude the consideration of any factors prohibited by federal law or an applicant's religious or political beliefs unless there is reason to believe that they indicate a substantial bias or conflict of interest that could affect impartiality as a judge.
The Council interview of each applicant is one of the most important parts of the judicial selection process. Members evaluate applicants using a "most qualified standard." In the Minutes of the Constitutional Convention, delegate Ralph Rivers said that merit selection would provide "an orderly screening process" in which the "Judicial Council will seek for the best available timber." Finally, the Council votes publicly to nominate two or more applicants to the governor for appointment.
The governors' appointments reflected different weighting of the factors considered by the Council. For example, governors appointed applicants with prosecution experience (42%) at higher rates than they were nominated (34%). They appointed attorneys who were in private practice at the time of their application to the superior court at higher rates (58%) than those at which they were nominated (49%).
Like most merit selection systems, Alaska relies on periodic retention elections of judges for accountability to the public. By law, the Judicial Council evaluates the performance of each judge standing for retention and makes its evaluations public to give voters an opportunity to make informed decisions. Most voters in the general elections-84 to 87 percent-cast a vote in the judicial elections. About two-thirds of them cast "yes" votes for the judges standing in their districts, and the appellate judges standing statewide, suggesting a high rate of approval, and the success of the initial merit selection process. The Council as recommended against retention of ten judges; three have not been retained. In all of the cases in which the Council has recommended against a judge and the judge was retained, it was by a substantially lower percentage of "yes" votes than for the other judges in that district.
In the fifty years since statehood, the Council has refined and expanded its tools for nominating candidates for judicial positions. At the same time, it has responded to the increasing numbers of vacancies and to the increasing interest among attorneys in becoming a judge. The Council continues to improve selection and retention evaluations by reviewing its processes, and by seeking new methods of encouraging public engagement.
Teri Carns is with the Alaska Judicial Council in Anchorage, with responsibility for research projects, report writing, and aspects of judicial selection and retention.