In our most recent December newsletter, we provided a portion of a presentation given by Retired Superior Court Judge Elaine Andrews to a community forum. She detailed the history of the swift Nazi takeover of the legal system in Germany. She then connected that history to current events, giving us an overview of the important differences between the political selection of judges in the federal system and the merit selection and retention of judges in the state system, and why it matters to Alaskans.

In summarizing the federal judicial appointment process, she stated, “People apply for a federal judgeship through our U.S. senators. The senators recommend an applicant to the president. The president makes the nomination. The nomination goes before the U.S. Senate, which confirms – or does not confirm – the president’s nominee.”

Judge Andrews then lamented the increasing secrecy and politicization of the federal appointment process. She noted that Senator Murkowski uses an open, public process, requiring applicants to submit to a public advisory poll conducted by the Alaska Bar Association. Judge Andrews explained that this basic survey “simply gives information to the senators as to who among the applicants the legal community thinks is the most meritorious candidate, who would make the best judge, who is most likely to be fair, impartial, hardworking, courageous, et cetera. And it’s a very public process.”

She noted that Alaska’s junior senator instituted a process that is completely closed to the public:

Senator Sullivan made up his own group. There was no public participation in that selection. We don’t know the name or number of people who apply through Senator Sullivan to be a federal judge, and the people who sit on his selection group are not allowed to discuss that. We don’t know the vote counts. We don’t know, and we can’t know, and [yet] we should know who’s applying to be a federal judge in Alaska. We should know something about them, and we should know that they are among the most qualified. We do know that if people are not selected on merit, you get what you get. And in the federal court, we get it for a lifetime. I am concerned that we are going backwards. Selecting judges in secret does not promote merit selection. We need judges who have the courage to stand before their peers and be graded and to stand before the public and be questioned. And if they come through that, then they may be qualified.

Judge Andrews further emphasized that the judicial selection and retention procedures for state judges, which are embedded in the Alaska’s Constitution, are the most public, transparent judicial merit-selection and retention processes in the country. The State’s Constitution establishes the Alaska Judicial Council, which has the responsibility for vetting judicial applicants, nominating those whose skills, knowledge, experience and overall demeanor makes them likely to be good judge, and conducting performance evaluations when judges are up for retention on the ballot periodically. The Council is made up of three non-attorneys selected by the Governor and confirmed by the Alaska Legislature, and three attorneys elected by members of the Alaska Bar Association statewide. The entire process is public – including the applications of the candidates, the vote of the Council members, the results of a deeply detailed Bar poll, and the participation of the public at open meetings. Unlike the federal system, Alaska’s judges are not politically appointed for lifetime terms. Rather, they are selected based on their knowledge, skills and demeanor for defined terms, subject to periodic retention election by Alaska voters.

Judge Andrews made a point of noting, however, that Alaska’s system “has been under attack, some subtle attacks, some not so subtle. Legislation has been introduced over the years to increase the size or the makeup of the council to give the governor significantly more power to make political rather than merit appointments to the bench. Laws have been introduced to require legislative approval of the attorney members with no criteria for what that approval might be based on.” Recent actions by the Governor underscore that some of the attacks on Alaska’s system are less overt in nature, but no less dangerous. This past year the Governor appointed a suspended attorney who practiced law for several decades in Alaska to one of the three non-attorney/lay-person seats on the Judicial Council. To complete the Governor’s appointment of this individual, the Alaska Legislature must vote in the upcoming legislative session whether or not to confirm him.

Connecting the importance of maintaining a merit-selected, independent and impartial judiciary, Judge Andrews quoted from a publication from the United States Holocaust Museum, Law, Justice and the Holocaust:

The most significant perpetrators (are)…are well known, Hitler, Eichmann, Himmler, as well as the SS among them. But less known are the contributions of ordinary people, doctors, lawyers, teachers, civil servants, officers, and other professionals throughout German society, whose individual actions when taken together resulted in dire consequences. Simply put, the Holocaust could not have happened without them. …In reality, the judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and hundreds of laws that restricted political freedoms, civil rights, guarantees of property and security. Yet overwhelmingly, the majority did not.

Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in a broad and far-reaching way that facilitated rather than hindered the Nazis’ ability to carry out their agenda.

Judge Andrews closed her remarks urging Alaskans to be vigilant and informed about Alaska’s judges/courts – the third branch of our government – and to vote to ensure that qualified judges are retained, and that our elected representatives guard our merit-based, independent judiciary.

Alaskans for Fair Courts thanks Judge Andrews for making the presentation discussed above, providing input on this newsletter, and for her ongoing commitment to ensuring that Alaska’s state judges remain independent of political pressures so that they can continue to interpret the law to the best of their abilities in service to all Alaskans.

– Alaskans for Fair Courts