Judicial Selection in Alaska: Justifications and Proposed Courses of Reform

• Publication year: 2003

§ 20 Alaska L. Rev. 49. JUDICIAL SELECTION IN ALASKA: JUSTIFICATIONS AND PROPOSED COURSES OF REFORM

Alaska Law Review
Volume 20
Cited: 20 Alaska L. Rev. 49

JUDICIAL SELECTION IN ALASKA: JUSTIFICATIONS AND PROPOSED COURSES OF REFORM

Tillman J. Finley

I. INTRODUCTION

II. THE HISTORICAL DEBATE OVER JUDICIAL SELECTION

III. JUDICIAL SELECTION IN ALASKA

A. Alaska's Merit Selection System

B. Dissent in Alaska

IV. ASSESSING THE MERITS OF MERIT SELECTION

A. Arguments in Favor of Merit Selection

B. The Arguments Against Merit Selection

C. Weighing the Arguments

V. ALASKA MERIT SELECTION REVISITED

A. Merit Selection and the Alaska Judicial Council in Practice

B. The Argument For and the Attempted Redemption of Judicial Elections

C. Balancing Independence and Accountability

VI. INCREASING ACCOUNTABILITY IN ALASKA'S MERIT SELECTION SYSTEM

A. Election of Attorney Members of the Alaska Judicial Council

B. Increased Legislative Participation

C. Ethical Rules and Standards in the Judicial Selection Process

D. Increased Transparency in the Selection Process

VII. CONCLUSION

FOOTNOTES

This Note evaluates the merit system of judicial selection, retention, and evaluation in Alaska and suggests a variety of potential reforms in light of the ongoing debate over how best to balance the competing values of judicial independence and accountability. This Note describes the historical and political context in which Alaska's system of merit selection was adopted and evaluates the arguments for and against merit selection, assessing the concept's strengths and weaknesses in light of the experiences of Alaska and other states. The Author responds to criticisms of Alaska's merit selection system by offering four potential modifications designed to provide for meaningful judicial accountability without sacrificing judicial independence ^[1] .

I. INTRODUCTION

Since even before the founding of our nation, there has been disagreement regarding the appropriate method of selecting judges in a democracy. Over the centuries, this debate has focused on determining the appropriate balance between the competing values of judicial independence and judicial accountability. The choice of a particular method for selecting the judges who will interpret and apply the law implicates one of the fundamental principles at the heart of democratic theory -- the equal, blind, and fair administration of justice. As Alaska weighed these issues on the eve of statehood in 1956, it had the benefit of almost two centuries of federal and state experience in judicial selection. After much debate and consideration, delegates to the Alaska Constitutional Convention adopted the merit selection model for selecting judges. This system [*pg 50] of judicial selection, retention, and evaluation, which involves non-partisan commissions presenting a list of qualified applicants to the governor for appointment, remains largely unchanged and continues to serve Alaska to this day.

Alaska's system, however, has not been free of controversy. The debate over judicial selection in Alaska has paralleled the ongoing struggle across the nation to achieve a judiciary that is both independent and accountable. This Note evaluates the arguments for and against merit selection of judges and the historical development of and justifications for Alaska's particular version of the merit selection model. Almost half of a century removed from the Alaska Constitutional Convention, this Note is intended to serve both as a critical assessment of the performance of merit selection in Alaska and as a reevaluation of the strength of the merit selection concept in light of the experiences of Alaska and other states. The Note concludes that merit selection remains the most appropriate and effective method of judicial selection, but recommends that Alaska consider a series of minor reforms in order to ensure that judges are held accountable to the public they serve.

II. THE HISTORICAL DEBATE OVER JUDICIAL SELECTION

Montesquieu argued that because the judiciary is the weakest of the three departments of power, "there is no liberty, if the power of judging be not separated from the legislative and executive powers."

[1] Alexander Hamilton concurred with Montesquieu in the primacy of judicial independence and argued that it was so important as to justify life appointment and salary protection for federal judges. ^[2] "[N]othing will contribute so much . . . to that independent spirit in the judges," Hamilton argued, as "the permanent tenure of judicial offices." ^[3]

Many, however, strongly disagreed with Hamilton's position. The anti-Federalist writer Brutus was appalled by the amount of power vested in the United States Supreme Court with little corresponding accountability. ^[4] "In short, [Supreme Court justices] are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel [*pg 51] themselves independent of heaven itself." ^[5] Thomas Jefferson believed that it was critically important that the judiciary remain independent of the other branches of government, but that it was equally imperative that judges remain accountable to the nation. ^[6] He believed that "judges should face the public from time to time to ensure they remained true to their constitutional oaths." ^[7] "A judiciary independent of a king or executive alone, is a good thing," Jefferson opined, "but independence of the will of the nation is a solecism, at least in a republican government." ^[8]

Hamilton's view prevailed in the U.S. Constitution ^[9] and, initially, at the state level as well. The first twenty-nine states to enter the Union had appointed judiciaries. ^[10] However, influenced by the populist views of Jefferson and Andrew Jackson, who was known to refer to judges as "politicians who hide their politics under their robes," ^[11] the trend soon shifted toward election of state judges. In 1832, Mississippi became the first state to elect appellate judges, and every state that entered the Union between 1846 and 1912 provided for judicial elections. ^[12] This trend concerned many who espoused the importance of judicial independence. ^[13] In 1835, Alexis de Tocqueville observed that

[s]ome [state] constitutions make the members of their courts elective and subject them to frequent elections. I dare to predict that these innovations will sooner or later have disastrous results and that one day it will be seen that by diminishing the independence of the judges in this way, not only was the judicial power attacked, but the democratic republic itself. ^[14]

During the 20th century a majority of states returned to judicial appointment by governors, legislators, or both. ^[15] Beginning in 1940, many states combined judicial appointments with some form of merit selection process and retention elections. ^[16] Today, gover[*pg 52] nors directly fill vacancies on the highest appellate courts in twenty-eight states, but in all but four of those states, governors are required to appoint from slates provided by nominating commissions. ^[17] Fifteen states use some form of merit selection in nominating candidates for judicial appointments. ^[18] Twenty-one states still hold judicial elections (nine partisan, twelve non-partisan), and Virginia provides for election of its supreme court justices by the legislature. ^[19] The governors of eighteen states have discretion for trial courts while nominating commissions recommend slates for the governor in twenty-seven states. ^[20]

III. JUDICIAL SELECTION IN ALASKA

A. Alaska's Merit Selection System

The "merit selection" plan was first conceived in 1913, but not adopted in any form by a U.S. state until Missouri voted for it in 1940. ^[21] Merit selection of judges is still referred to as the "Missouri Bar Plan" or the "Missouri plan." ^[22] Generally, merit selection systems use a non-partisan nominating commission of lawyers and non-lawyers to identify and evaluate candidates for judicial positions. These commissions then present a list of the two or three most qualified applicants to the appointing authority (usually the governor), who chooses one candidate to appoint to the bench. Judges are then subject to evaluation by the commission and the general public and are periodically required to appear on the ballot for a "retention" vote.

Alaska incorporated its method of judicial selection into its constitution upon statehood in 1956. The Alaska Constitution es[*pg 53] tablished the Alaska Judicial Council ^[23] to nominate candidates for judgeships at all four levels of state court. ^[24] The Council provides a list of at least two qualified applicants to the governor, who then appoints one individual from that list to fill an existing or impending vacancy. ^[25] After an initial term of three years, all Alaska judges must stand in a retention election. ^[26] The particular judge is not opposed by another candidate, and voters are presented with only a "yes" or "no" choice. ^[27] If retained by voters, judges then serve a full term of a specified length before they stand for retention again. ^[28]

The Council is made up of seven individuals: three attorney members appointed by the Alaska Bar Association Board of Governors; three non-attorney members appointed by the governor and confirmed by a majority of the members of the...