In his final speech before retirement, Alaska Chief Justice Daniel Winfree firmly defended the state’s merit-based process for picking judges on Wednesday, telling the state’s 60 legislators that he is aware that some of them don’t want apolitical judges, but he believes it’s an important principle to keep.
“With apologies to Led Zeppelin and ‘Stairway to Heaven,’ the judiciary was intended to be a rock and not get rolled,” Winfree said.
Winfree’s remarks were generally praised by legislators. Senate President Gary Stevens, R-Kodiak, called it “the finest speech I think I have ever heard from a chief justice,” and similar praise came from House Majority Leader Dan Saddler, R-Eagle River, and House Minority Leader Calvin Schrage, I-Anchorage.
Winfree also said that the court system is at “virtually the same levels of activity and productivity that we were at before the pandemic,” which curtailed in-person hearings.
That led to a major backlog of cases, in part because criminal defendants were disinclined to accept plea deals without a firm trial date.
Now that court hearings have resumed, cases are being processed, Winfree said, though he noted that the number of pending criminal cases remains higher than normal.
“This is very frustrating, given all the efforts and incremental progress we made before the pandemic,” he said.
A shortage of public defenders, particularly in rural Alaska, is also hampering the progress of criminal cases, Winfree said in an interview after the speech.
He also noted the creation of a grant-funded position intended to help landlords and renters mediate eviction cases before trial and said the court system may expand the use of online hearings in place of in-person proceedings.
Winfree will be replaced next week as chief justice by Peter Maassen, the court’s next-most-senior member, and his voice broke as he delivered his final farewell, describing himself as “a kid from Fairbanks with the teenage dream of someday helping make important decisions for Alaska.”
“And 15 years ago, I suddenly found myself one of five people heading the judicial branch of Alaska’s government,” he said. “I have given it everything I have to give, and loved every minute of every day. To all you other children of Alaska out there, young and old, live your dreams and make Alaska an even better place for all of us.”
Saddler said he was touched and impressed by Winfree’s farewell, but other lawmakers said it was his comments on judicial retention that grabbed their attention.
Under the Alaska Constitution, the state’s residents do not elect judges. Instead, licensed attorneys are invited to apply for any open judgeship, and those applications are vetted by the Alaska Judicial Council, a seven-member board that includes three members elected by the Alaska Bar Association, three members appointed by the governor, and the chief justice. The Chief Justice votes only if there is a tie.
The council appoints a shortlist of nominees, and the governor selects from that list.
Political considerations are explicitly excluded from the council’s deliberations.
“Alaska should always be paying attention to that,” Winfree said after the speech, referring to the judicial selection process, “and making sure that there is no change.”
Winfree is retiring next week, and his impending departure from state service seemed to give him a platform to be more fiery in defense of a system that is sometimes criticized by those unhappy with the result.
Law is like the riverbanks on either side of a stream, he told legislators, using an analogy from his law-school days. Politics, he said, is the stream within those banks, and the courts are in charge of making sure the river doesn’t top the banks.
If courts try to respond to public opinion, he said, “the judiciary and the rule of law means nothing.”
He acknowledged criticism of some court decisions but shrugged it off.
“It seems like most people based their judgments on our decisions based solely on how their internet sources characterize the result,” he said.
Those who have introduced legislation seeking to change some of Alaska’s judicial selection laws said they felt Winfree was targeting them, perhaps unfairly.
Sen. Mike Shower, R-Wasilla, introduced a bill at the start of the legislative session that would change elements of the judicial selection process controlled by law, not the constitution.
He said he doesn’t want to see elected judges, but he does want to see “some input in the process besides just a trade organization, the Alaska Bar Association.”
Debates during the Alaska Constitutional Convention of the 1950s included concerns that the judicial selection process lacked sufficient public input.
Under Shower’s proposal and a similar one in the House from Rep. George Rauscher, R-Sutton, a governor would be able to nominate candidates to the Judicial Council, and if one of those candidates is selected for a vacancy, he or she would be subject to a confirmation vote in the Legislature. That would indirectly involve the public, Shower said.
The bill has not yet been heard in committee, and members of the Senate’s majority caucus indicated that they’re not interested in changes.
“I think we have the best judicial selection system in the United States. I think electing judges is a bad idea,” said Sen. Bill Wielechowski, D-Anchorage and a practicing lawyer.
“Seventy percent of Alaskans said no to that option just a few months ago,” said Sen. Cathy Giessel, R-Anchorage, referring to the results of the state’s once-per-decade referendum on whether or not to hold a constitutional convention.
Supporters of the referendum had advocated a convention as a way to make changes to judicial selection, among other topics.
Winfree said after the speech that he thinks the defeat of the convention vote has muted the drive to change the selection process, but it’s hard to tell.
Giessel said flatly that there will be no change in the next two years before the 2024 elections.
Shower said he’s not sure.
“I know that there’s some House members that are interested in running this, and we’re gonna get into horse trading at the end,” he said.
Under his scenario, a judge-selection bill that passes the House and stalls in the Senate could advance if senators want to see some of their legislation clear the House before the 2024 election.
Prior editions of the Legislature have seen lawmakers trade progress on one bill for progress on another, and it’s not impossible that the same thing could happen again, Shower said.
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