Alaska chooses and retains judges through a merit selection system, designed to select the best judges possible, and provide accountability to the public. The state's constitution established a merit selection process administered by the Alaska Judicial Council. The Council members-three non-attorneys and three attorneys-review all applicants for judicial positions and nominate two or more of the best qualified to the governor for appointment. The chief justice presides as chair but only votes when the chair's vote can make a difference. All judges then stand periodically for retention by the voters. By law, the Council evaluates judges' performance before each retention election, and reports its findings and its recommendations for retention to the voters.
The Council has just released its third report on the judicial selection and retention process. (Earlier reports were published in 1999 and 2008 and are available on the Council's website). It builds on the two previous reports, and describes the characteristics most closely associated with applicants for judicial positions, the Council's nominees, and the governors' appointees. Substantial changes occurred in some aspects of the process between 1984, when the Council began keeping data, and 2012. Other aspects of the process have remained notably consistent over the years. Data from the Council's files shows the qualities of judicial applicants, and a survey of Alaska Bar members shows how applicants differ from the typical attorneys in the state. The report also shows how qualities highlighted in judicial selection are associated with the evaluations of judicial performance during the retention election process.
The report was created as part of the Council's constitutional mandate to conduct studies "to improve the administration of justice" (Article IV, Section 9). It informs the public, bar members, prospective applicants, and the judiciary about the Council's practices and procedures for judicial selection and retention. It enables the Council to assess its own performance, and increases its ability to carry out its constitutional and statutory responsibilities in the best way possible.
How the Judicial Selection Process Works
When a judicial vacancy occurs, the Council notifies all members of the bar, and issues a press release. Attorneys who want to apply for the position submit a detailed application, a writing sample, and waivers authorizing the Council to investigate credit, criminal history, and any bar or judicial discipline. The Council staff members conduct a thorough investigation, and survey all bar members about the applicants' abilities, integrity, fairness, judicial temperament, and suitability of experience. The Council conducts a public hearing and solicits public comment, and interviews every applicant. After considering all of the information, the Council nominates the two or more most qualified applicants to the governor. The governor then has 45 days in which to make the appointment.
The Council's bylaws and selection procedures call for the members to look for the most qualified applicants (see the Council's web site at www.ajc.state.ak.us for detailed information). The constitution's drafters referred to this as the "best available timber." Members look for excellent professional and legal abilities, integrity, fairness and impartiality, judicial temperament, suitability of experience for the particular position, and overall assessment of the applicants' ability to serve as a judge. They also assess communication skills, community service, life experiences that will contribute to service as a judge, and common sense.
How Judicial Selection between 2008 and 2012 Compared to Earlier Years
- More vacancies. Between 1984 and 2012, the number of vacancies increased steadily, tracking the state's increased population and need for judicial services. The Council handled 3.8 open judicial positions per year between 1984-1988, but from 2008-2012, the number of vacancies averaged 7.6 per year.
- More applicants per vacancy. Applicants per vacancy went up, from about six per vacancy in the early years to about nine per vacancy in the most recent five years. There has been an increase in the number of lawyers in Alaska relative to the number of judicial positions available over the period.
- More applicants for appellate positions, and for Anchorage and Palmer. The biggest increase came in the number of applicants for appellate positions, followed by more applicants for district court, and little change in the average number of applicants for superior court positions. Attorneys were more interested in positions in Anchorage and Palmer; the average number of applications for each position increased from 5.8 in the 1980s to 9.0 in the 2008-2012 period. The average number of applications decreased in Fairbanks and other parts of the state over the same period.
- No change in percentage of applicants nominated. Council members serve staggered six-year terms, with non-attorney members appointed by the governor and confirmed by the legislature, and attorney members appointed by the Bar Board of Governors after an advisory vote. One thing that has remained remarkably consistent over the past twenty-nine years has been the percentage of applicants nominated by the Council, despite regular turnover among members. The Council has typically nominated between 36 percent and 39 percent of all applicants, no matter what its composition.
- Council continues to nominate more than minimum number of applicants. The Council nominates more than the minimum two applicants required by the constitution and statues nearly three-quarters of the time. When the Council only sends two names to the governor it is often a situation in which there are few applicants, such as for a position in a rural area.
Who the Applicants Were, and How They Compared to Alaska Bar Members
The Council compiled information on applicants' demographic characteristics, and compared these to those of the 2,438 in-state bar members who responded to a March 2013 survey of the bar. Thirty-seven percent of the members responded. The characteristics of those who responded were similar to those of the active members of the bar, suggesting that the survey reflected the composition of the bar well. The most recent analysis showed that the substantial changes in the types of people applying for judicial positions tracked the changes in the bar membership. Most notably:
- Bar members and applicants are older. The average age of bar members increased from 40 years old in 1989 to 52 years old in the 2013 bar member survey. The average applicant's age increased from 39 years in 1984-1988, to 50 years in 2008-2012, with district court applicants averaging 37 years, and superior court applicants 41 years. Appellate court applicants averaged 55 years of age from 2008-2012. (There were no appellate court vacancies from 1984-1988.).
- Years of practice and residency have increased. This finding is consistent with the increasing ages of bar members and applicants. The constitution and statutes require a minimum of five years' residency in the state immediately preceding a judicial appointment, and differing numbers of years of practice, depending on the level of the judgeship. Both bar members and applicants' average years of residency increased from a little more than eleven years during the 1980s, to about 21.5 years by 2012.
- The bar has more female members, and more applicants were women. In 1989, 25 percent of the bar members were women; in the 2013 member survey, women made up 38 percent of the membership. Similarly, the percentage of female applicants increased from 15 percent in 1984-1988 to 32 percent in 2008-2012. One reason for the lag in female applicants compared to female bar members is that women bar members tend to be younger than male bar members, and therefore less likely to have the requisite years of practice to qualify for judicial positions. Female and male applicants have consistently been nominated at the same rate (37%). Female appointments have varied substantially from a low of 16 percent female appointees between 2003 and 2007, to a high of 29 percent female appointees between 2008 and 2012
- Ethnic diversity in the bar stayed about the same, but more minorities were nominated and appointed. Ethnic representation in the bar remained about the same between the 2007 and 2013 bar membership surveys (the data were not compiled in the 1989 bar survey). About 94 percent of the bar members were Caucasian, with just more than 2 percent Alaska Native/American Indian, 1 percent each Hispanic, Asian/Pacific Islander, and just less than 1 percent African-American. Ethnic diversity on the bench increased however, with more minority bar members applying for positions, being nominated, and being appointed. During the 23 years from 1984-2007, four minority attorneys were appointed to the bench; in the five years between 2008-2012, four minority attorneys were appointed. (Between 1984 and 2007, 13 minority attorneys filed 27 applications. During the period 2008-2012, 13 minority attorneys filed 20 applications.)
Legal Experience and the Selection Process
While the demographics of the bar have changed substantially over the 29 years covered in the Council's report, the characteristics of the applicants' legal experiences have been less mutable. The relationships between legal background and likelihood of nomination have also stayed stable, while the associations with likelihood of appointment have been more varied.
- Most applicants had both public and private sector experiences during their legal careers. Private sector experience included practicing in a law firm, serving as corporate counsel, or working in private non-profit organizations. This did not change significantly over the decades studied, and held true for nominees and appointees as well as applicants. What did change to some extent was the likelihood that attorneys would be employed in the public sector at the time of their application. Between 1984 and 1988, the percentage of applicants from the public sector was 49 percent, rising to 58 percent in the years between 2008 and 2012. One possible explanation was that an increasing percentage of the applicants were female, and women were more likely be employed in the public sector. The percentages of nominees and appointees working in the public sector at the time of application remained stable during the entire 1984-2012, period, and ranged between 58 percent and 60 percent.
- A majority of applicants had been either a prosecutor or a public criminal defense attorney at some point in their careers. The percentage has increased in recent years. The percentages differed by court level, with prosecutorial experience more associated with nomination to the district court, and public defense experience more associated with nomination to the superior and appellate courts. The Council nominated almost exactly the same number of attorneys with prosecutorial experience as with public defense experience.
- Most applicants had private practice experience. Eighty-six percent of applicants had some private practice experience, whether as a solo practitioner or as a member of a firm. Applicants with only private practice experience were less likely to be nominated and appointed. Attorneys in private practice at the time of application were more likely to apply for superior court than for district court or appellate courts.
- Recent trial experience was more closely associated with nominations for appellate courts than for trial courts. Substantial and recent trial experience was defined as six or more trials in the preceding five years, and was more important in nominations for appellate courts than for trial courts.
What Else Did the Council Look At?
In addition to reviewing the applicants' legal experiences, the Council reviewed their writing samples, bar and judicial discipline, bar survey ratings, and service to the community, the bar, and pro bono clients.
- Bar survey ratings were one factor among many. The Council considered a wide range of information in its review of applicant qualifications. Applicants with higher survey ratings (3.5 and above on a scale of 1-5) were more likely to be nominated, but a high rating did not guarantee nomination. There was little difference between nominees and appointees on survey ratings.
- Bar survey ratings for applicants as a group have increased over the past three decades. Evidence in the report suggests that applicants for the bench in recent years are more qualified. They have more years of practice, longer residence in the state, more varied life experiences because they are older, and more varied experience practicing law. There is also more competition for judicial positions because the number of attorneys has increased at a greater rate than the number of available positions.
- Nominees and appointees tended to have writing that was rated good or excellent. Higher writing sample ratings were associated with a greater chance of nomination and appointment, for all levels of court.
- Council members considered a range of information. A survey of Council members indicated that responses from questionnaires sent to attorneys and judges who had direct and recent experience with applicants, and signed comments on the bar survey were among the most important sources of information in their decisions. They also valued the interviews with applicants, and considered community and pro bono service. Unsigned and unsubstantiated comments from the bar survey, likelihood of appointment by the governor, and factors prohibited by law (such as ethnic background, religion, age, gender, and so forth) were not considered.
How the Retention Evaluation Process Works
Alaska's judges periodically stand for retention on the ballot in general elections. Each judge has a shorter first term, and then serves a longer term set by statute (see the retention evaluation procedures and applicable law on the council's website at http://www.ajc.state.ak.us/ retention/retproced.html and http://www.ajc.state.ak.us/retention/retlaw.html). Statutes require the Judicial Council to evaluate each judge's performance during the term of service, and to make those evaluations, and any recommendations public. As a result, voters in Alaska have an in-depth assessment of each judge's performance on which to base their votes.
To complete its evaluations, the Council uses a variety of information. It asks each judge to complete a self-assessment questionnaire. The Council surveys all of the following individuals statewide about judicial performance: all attorneys, all peace and probation officers, all social workers and guardians ad litem, jurors, and all court employees. It also compiles the appellate affirmations and reversals for trial court judges, peremptory challenges and recusals, discipline, and other investigative information. Based on all of this information, the Council recommends retention or non-retention for each judge. It then publicizes the evaluations and recommendations statewide, using media, Internet and social media resources, public appearances, and publication of its materials in the lieutenant governor's voters' pamphlet that goes to every household that has a registered voter.
The Judicial Performance Evaluations
Before each retention election, the Council conducts statewide surveys of thousands of Alaskan citizens who have come in contact with judges during their terms. Respondents to the surveys assess judicial performance in the areas of integrity, impartiality, judicial temperament, diligence, and overall abilities. Attorneys also evaluate legal abilities of judges. Only attorneys and court employees are asked to assess appellate judge performance. The report showed that:
- Attorneys' overall ratings of judges have increased substantially since 1984. Attorney ratings of trial court judges rose from an average of 3.6 overall in 1984 to 4.2 overall in 2012. This is consistent with all of the reports' findings that the overall quality of applicants has risen during the past three decades. Appellate judge ratings rose from 4.1 to 4.4 during the same period.
- Peace and probation officer ratings of trial judges also increased. The ratings rose from an average of 3.4 in 1984, to an average of 4.2 in 2012. Ratings from other groups remained high throughout the study periods, all in the 4.0 range or above.
- Higher ratings during the selection process were associated with higher judicial performance ratings. For many judges in the study, the Council also had information from their applications, which was used to analyze the associations between applicant qualities and judicial performance. The analysis showed that higher bar survey ratings and writing sample ratings as an applicant were associated with higher retention performance evaluations. The data also indicated that judges who had been either a judge or a public defense attorney at any point in their legal careers received slightly better than average ratings on retention surveys.
The Retention Votes
The Council reviews retention voting patterns for insight into public perception of judges, and to assess the effectiveness of its evaluation process. In this report, it found that:
- Most voters cast a ballot in statewide judicial retention elections during 1984-2012. Of those who voted in the statewide general election, 84-87 percent voted in the judicial retention election. This compares favorably with the 98 percent to 99 percent of the voters who typically vote in the other biannual statewide race, for Alaska's single U.S. House of Representatives seat.
- About two-thirds of votes for judges are "Yes" votes for retention. "Yes" vote percentages for all judges combined have ranged between 63 percent and 70 percent during 1984-2012. Judges in the First and Second judicial districts tend to have higher "yes" vote percentages; those in the Fourth district are about average, and those in the Third district tend to be lower than the state average.
Over the past three decades, the pool of applicants from which the Council has made its nominations has expanded and matured. Several indicators show that the Council can draw from an increasingly diverse and experienced group of attorneys to fill judicial vacancies. Retention election results support the conclusion that Alaska's judges are well-regarded by voters to whom they are accountable.
Teri Carns is with the Alaska Judicial Council in Anchorage, with responsibility for research projects, report writing, and aspects of judicial selection and retention. The complete report Selecting and Evaluating Alaska's Judges: 1984-2013 is available at http://www.ajc.state.ak.us/reports/jgprofile13.pdf. The 1999 and 2008 reports can be found on the Council's publications page at http://www.ajc.state.ak.us/reports/admin.html.