Victory for Merit Selection in Alaska
Advocates, jurists, and court watchers across the country have been warning us that judicial independence is in peril, what with unprecedented spending on statewide elections and continued concerns about recusal. Under the circumstances, every victory for judicial independence merits celebration—whether that victory is a new reform or, as is the recent case in Alaska, an affirmation that a good system works well and should remain in place.
Advocates, jurists, and court watchers across the country have been warning us that judicial independence is in peril, what with unprecedented spending on statewide elections and continued concerns about recusal. Under the circumstances, every victory for judicial independence merits celebration – whether that victory is a new reform or, as is the recent case in Alaska, an affirmation that a good system works well and should remain in place.
On Friday, a federal judge threw out a lawsuit mounted by Indiana attorney James Bopp Jr. that challenged how Alaska chooses its judges. The basis for Bopp’s lawsuit was dubious at best. He claimed that the state’s judicial selection system “gave too much power” to “elites and insiders” on the Alaska Judicial Council and that, as a result, it violated the Equal Protection clause of the 14th Amendment and the principle of “one person, one vote.”
Alaska has a merit-based system for the selection of judges. As such, it empowers the Alaska Judicial Council to screen applicants and come up with a list of possible nominees for judicial openings; the list is forwarded to the governor, who then appoints the nominee of his or her choice. Bopp took issue with the composition of the Council, which is comprised of both lawyers and non-lawyers, because in Bopp’s estimation the system gives “too much say” to the state’s lawyers. Bopp is at least correct that three of the seven members of the Council are appointed by the governing body of the Alaska Bar Association, and that non-lawyers don’t have a say in choosing the Bar’s leadership. But allotting some seats on the Council is only natural given the value of having lawyers’ expertise on the Council. Lawyers work in the courts every day; they work closely with judges and know what makes an effective jurist, and lawyers serving on the Council often have insight into the character and reputations of other lawyers being considered for spots on the bench. Having lawyers help identify who should be considered for a judgeship is as natural as having engineers, say, weigh in on who should chair the Alaska Oil and Gas Conservation Commission.
Bopp sought an injunction to prevent Council members appointed by the Bar from participating in the selection of potential nominees. Though the nomination and appointment system has been in place since the Alaska constitution was adopted in 1956, Bopp chose to seek an injunction only on the eve of Alaska Supreme Court Justice Robert Eastaugh’s imminent retirement. (The Council accepted applications for the seat through May 28.)
In its judicial selection system, Alaska keeps good company. It is one of 25 states that use some form of commission-based appointment of judges. Though the precise composition of these commissions varies from state to state, according to the American Bar Association, “most include lawyers selected by their peers, and non-lawyers selected by the Governor or other election officials.” In some states, there are requirements to balance representatives of each political party.
What’s clear, regardless of the particularities of how each state handles and organizes its nominating commission, is that merit-based selection works. It has earned wide praise from lawyers and jurists alike (including Sandra Day O’Connor, an outspoken advocate) as an effective, non-partisan mechanism for selecting judges. It also, crucially, may help cultivate much needed diversity on state benches.
This latest affirmation of merit-based selection in Alaska will no doubt be a boon to other judicial reform efforts across the country - like the one in Pennsylvania, where a bill pending in the state legislature aims to create a form of merit-based selection. In the meantime, Bopp says he’ll appeal. (Undeterred by the recent order, he told the judge that if his side loses “the bar association could ‘flat out select all the judges,' amassing power like Iranian mullahs.”) But, like courts in Indiana and Missouri, which have rejected lawsuits similar to the one in Alaska, the court of appeals should affirm the dismissal of this baseless lawsuit. As an Anchorage Daily News editorial declared yesterday, “This lawsuit met its just fate in federal court.”
Update 9/17/2009: Judge John W. Sedwick releases order and opinion.