Measure Would Increase Public Seats On Judicial Council

A group of Republican state senators want to change the make-up of a commission tasked with vetting judges for the governor. But some critics worry that could shift the balance of the judicial system itself.

Since statehood, the Judicial Council has been made up of three attorneys, three public members, and the chief justice of the state supreme court. The attorneys are there to give input on how well judicial candidates understand the law, while the public members offer a perspective on what the state should want from its judges.

Now, Sen. Pete Kelly wants public members to outnumber lawyers two to one. His measure would change the number of public members from three to 10, and the number of attorney members from three to five.

The Fairbanks Republican believes the Alaska Constitution should be amended for two reasons. One, the current configuration doesn’t allow for much regional diversity, because most attorneys don’t live in rural areas. Kelly read from the membership roster at a Senate Judiciary Committee hearing on Friday.

“It reads like an urban Alaskan phonebook,” he said. “Attorney members: Ketchikan, Ketchikan, Juneau, Juneau, Juneau, Juneau, Fairbanks, Fairbanks, Fairbanks, Fairbanks, Anchorage, Anchorage, Anchorage, Anchorage.”

Kelly’s second qualm is that when the public members and attorney members are split, the chief justice has sided with the lawyers in a little over half those cases. He thinks that creates a conflict of interest for the chief justice.

“They can, with their vote, choose people who think the way they think,” Kelly said. “So, you have a potential molding of the [Alaska] Supreme Court by members of the [Alaska] Supreme Court. It puts them in an incredible position of power.”

Over the past 30 years, there have only been 15 situations where the public members and the attorneys have been divided on a judicial candidate. That’s out of more than a thousand votes.

But Sen. Lesil McGuire, an Anchorage Republican, said those instances can still spark controversy.

“It doesn’t sit well with the public, and it has created tremendous acrimony,” she said.

Because the Judicial Council has so much influence over which judges the governor appoints, it’s been somewhat of a lightning rod in recent years. In 2009, two applicants for judicial posts tried suing the state because they took issue with the nominating process. In 2012, a conservative advocacy group Alaska Family Action filed a complaint against the council, arguing that the council shouldn’t be able to campaign on behalf of judges. (The case concerned the retention of Anchorage Superior Court Judge Sen Tan, who received high marks from the Judicial Council but was targeted for removal by Alaska Family Action because of his ruling in a case involving the state’s abortion laws.) Last year, Kelly introduced a separate bill to prevent the council from doing just that.

During the Senate hearing, McGuire noted that making changes to the Judicial Council policy can be a sensitive prospect. But she thinks updating that policy could help prevent the state from switching to a system where judges are elected.
“When we do that, it’s not an attack,” she said.

But some Democrats worry it might be. Sen. Bill Wielechowski of Anchorage likens the measure to Franklin D. Roosevelt’s attempt to pack the US Supreme Court during his presidency.

“This has been part of a crusade for many years to get a judiciary that’s much more socially conservative,” Wielechowski said.

Sen. Hollis French doesn’t think the argument for the amendment holds up either. He said Alaska has a strong judiciary and he doesn’t see good evidence for changing it.

“But it may be that certain activist groups out in the public are unhappy with the way our constitution is interpreted, and they want to tip the scales in their favor,” said French, a Democrat from Anchorage.

Because Kelly’s measure would amend the constitution, it needs support from two-thirds of the Legislature and a majority of Alaska voters.

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