“No State Constitution has ever gone this far in placing one of the three coordinate branches of government (the Judiciary) beyond the reach of democratic controls. We feel that in its desire to preserve the integrity of the courts, the convention has gone farther than is necessary or safe in putting them in the hands of a private professional group…(the AK Bar Association.”From Vic Fisher’s book “Alaska’s Constitutional Convention”, this quote was provided by consultants paid in 1955 to come up from the Lower 48 and advise the original delegates on their proposed plan of selecting judges.
This time of year, Alaska Family Action is flooded with questions about who to vote for on the judges. Actually, the question is normally “Are there ANY judges worth voting for?“Well yes, there are generally a very small handful of judges who have a strict constructionist, original intent, Antonin Scalia-style judicial view. Emphasis on very small. The vast majority of judges in Alaska are of the living, breathing, ever-evolving mindset of Ruth Bader Ginsberg with a progressive, liberal philosophy on jurisprudence. Those are just the facts.Another reality is that the “retention elections”, orchestrated by the Alaska Judicial Council, are more of a coronation or anointing than they are an actual opportunity for citizens to cast an educated vote. More than 99% of all judges up for retention over the decades have been retained. And the vast majority of Alaskans voting have no idea why they vote yes or no.Oh the Alaska Judicial Council provides a guide, CLICK HERE for that, but it is nothing more than Judge Suzy has great legal abilities, integrity, impartiality/fairness, temperament, diligence, and administrative skills. Or that Judge Barney is loved by attorneys, social workers and probation officers.In terms of their actual judicial philosophy, there is nothing. You know, because that would be “political” and our system of selecting judges is pure as the driven snow right ? Wrong.Ask anyone if there is a difference in how U.S Supreme Court Justice Amy Coney Barrett and fellow Justice Ketanji Brown Jackson decide cases. Here’s a clue – YES. And is there a fairly predictable outcome on many cases based on that difference ? Of course there is. Judicial philosophy matters. That should be a on a t-shirt. People on both sides of the political aisle know that judges have political opinions, leanings and philosophies. They are human. So people voting on these public officials should know more than whether they organize meetings well with their clerks or have great chit chat with the court reporters.Would the Alaska Judicial Council be okay if the only questions asked of Justice Brett Kavanaugh were if he was loved by attorneys, social workers and probation officers and had great administrative abilities ? No they would not. On the Federal level, which is what we should strive for in Alaska, the nominees are a reflection of the elected CEO – the President. Elections matter and the current President, yes even Biden, gets to choose their nominees. It should be the same in Alaska but it is not.Eight out of twelve or 67% of the Governors in Alaska since statehood have been conservative leaning and yet we have never, to my knowledge, had a conservative leaning court. Why ? Because the left leaning Alaska Bar Association controls the judiciary. And Vic Fisher knew it along with a handful of other delegates back at statehood but, as Fisher describes in his book, that consultant report listed at the top of this page, never made it to the full delegation. It was some good advice that just wasn’t taken or even passed along. And the court has been politicized ever since.So, in terms of voting on judges, I say vote NO on all of them. Every single one will get retained. That’s all but certain. Are there a few aligned with a Samuel Alito, Neil Gorsuch or Clarence Thomas style of ruling from the bench ? Yep. There are a few.But the last thing we want to do is “out” them in a hard left environment where their career advancement would be questioned, stifled and cancelled. We want to keep that tiny voice of balance still flickering until Alaskans finally get their voice back on the third branch of Government.