Since it became a state, Alaska has used a merit commission system to select state court judges. Under the system, the Alaska Judicial Council, an independent non-partisan body created by the Alaska constitution, reviews the qualifications of potential judicial candidates and presents nominees to the governor, who appoints a judge from those nominees. By ensuring that qualifications related to merit are central to the selection process — and thereby ensuring that selections are not based on a judicial aspirant’s political affiliation, ability to raise money, or willingness to pander to an electorate — Alaska’s judicial selection system reduces the negative effects that partisan politics can have on the independence — and perceived independence — of the judiciary.
In Kirk v. Carpeneti, filed on July 2, 2009 in the U.S. District Court for the District of Alaska, plaintiffs challenged Alaska’s judicial selection system, claiming that the process the state uses to appoint judges violates the federal Equal Protection Clause. In particular, plaintiffs argued that because 3 of the 7 members of the Alaska Judicial Council are appointed by the Alaska bar association’s Board of Governors, and because Alaska lawyers have a greater voice in the selection of the Board of Governors than non-lawyers, the state’s non-lawyers are impermissibly denied an “equal voice” in the selection of state court judges.
Plaintiffs moved for a preliminary injunction, and defendants — the members of the Alaska Judicial Council — moved to dismiss. In a hearing held on September 11, 2009, the Court ruled on the motions from the bench, denying plaintiffs’ request for an injunction and granting the motion to dismiss. A written order explaining the court’s decision issued four days later, and plaintiffs appealed to the Ninth Circuit Court of Appeals.
The Brennan Center filed an amicus brief in the Ninth Circuit on March 9, 2010, defending Alaska’s merit selection system and urging affirmance. Our amicus brief argued that Alaska’s decision to give the state bar responsibility for appointing attorney members to the nominating commission, rather than allowing a political branch of government to appoint all members, promotes the constitutionally vital goals of judicial independence and judicial quality.
On November 30, 2010, the Ninth Circuit affirmed the District Court’s dismissal of plaintiffs’ appeal. In concluding that plaintiffs had failed to state a viable legal claim, and that Alaska’s merit selection system did not violate principles of Equal Protection, the Ninth Circuit offered the following observations:
Ultimately, Plaintiffs seek to effectuate a change in Alaska’s constitutional policy through the courts because Plaintiffs would prefer judges to be elected and want to reduce attorney influence. The pros and cons of merit selection as a system for selecting state court judges, and the pros and cons of giving attorneys a particular role in that system, were discussed at the Alaska Constitutional Convention. . . .
Alaska’s founders, when considering the selection of the members of the Judicial Council at the Constitutional Convention . . . resolved the debate in favor of the expertise that attorneys could bring to the process. The Equal Protection Clause, as long interpreted by the federal courts, does not preclude Alaska from making that choice.
On October 14, 2010, Plaintiffs-Appellants petitioned the Ninth Circuit for rehearing and rehearing en banc.
See below for the relevant case documents, and our amicus brief.
Selected Court Documents
Letters in Support