When WC was a first year law student in Chicago, our Civil Procedure professor took us to Cook County Courthouse to meet the presiding judge and get a back-of-the-house tour of the courtrooms. The presiding judge was Irish, pompous and morbidly obese. And the day after our visit, he was indicted by the the U.S. Attorney, charged with soliciting and receiving bribes. Charges to which he eventually plead guilty. During WC’s three years in Chicago, 21 of the 46 Cook County circuit court judges – nearly half – were similarly indicted and convicted. It’s a damning critique of Illinois’ practice of electing its judiciary in partisan elections. Not the first or the last time, either.
Alaska, by contrast, has had exactly one criminal conviction of its trial judges in the 62 years since statehood in 1959.
Alaska doesn’t elect its judges. Instead, the Alaska Judicial Council takes applications for judicial vacancies from qualified applicants, goes through a rigorous review process, including a public hearing, and sends at least two of the best qualified to Alaska’s Governor, who picks the one to serve. The Council was created by the Alaska Constitution and consists of three laypersons, nominated by the Governor and confirmed by the Legislature, three lawyers, selected by the Alaska Bar Association, and the Chief Justice of the Alaska Supreme Court. It takes four votes by the Council members to send a nomination to the Governor. The Chief Justice only votes in the event of a tie. The founding fathers of Alaska, the folks who wrote the Alaska Constitution, felt strongly enough about this issue that they put the details of the process in the Alaska Constitution, away from the whims of politics.1
That process has worked very well. With rare exceptions, Alaska has had a uniformly qualified, conscientious, diligent and honest judiciary. WC has been involved in and tried cases all over the state, and the quality of the judiciary is uniformly good to great. On the rare occasions where judges violate their ethical rules, they are reprimanded. There’s a separate state commission for that, but it has only had occasion seven times since statehood to recommend a judge be disciplined, almost always by public reprimand.
The most recently appointed member of the Alaska Judicial Council is dissatisfied with this proven process. That would be Kristie Babcock, who is arguably disqualified from serving, but was nominated by Governor Dunleavy and confirmed by the Alaska Legislature anyway. At new Council member Babcock’s first meeting, the Alaska Judicial Council selected nominees for an announced vacancy on the Alaska Supreme Court. Her favorite candidate didn’t get nominated. The vote on her favorite’s nomination resulted in a 3-3 tie. Alaska Supreme Court Chief Justice Joel Bolger, exercising his constitutional responsibility, voted to break the tie. He voted against the nomination of Babcock’s favorite.
Put another way, Ms. Babcock was unable to persuade any of the three Council members voting against her candidate to change their minds. A failure on her part, you might agree.
Ms. Babcock threw a hissy fit, expressed in the form of an op-ed piece in the Anchorage Daily News. It’s a hatchet job on Chief Justice Joel Bolger and an unfair, misleading and mean-spirited criticism of the Alaska Judicial Council. The tone of the op-ed piece is so nasty that WC thinks it was probably written by Tuckerman Babock, the spouse of Ms. Babcock, Governor Dunleavy’s ex-Chief of Staff and former chair of the Alaska Republican Party. The op-ed piece has the nasty, mean-spirited tone and utter disregard of facts that are the signature rhetorical tools of Tuckerman Babcock.
Kristie Babcock, in her op-ed piece, notes her candidate was of Mexican-American ancestry, and argues that Chief Justice Bolger’s vote against his nomination was therefore racist. WC has known Joel Bolger for years and he is one of the least racist people WC knows. As just one example, it was Chief Justice Bolger who appointed Kristie Babcock’s preferred nominee to be the Presiding Judge in the Second Judicial District. Twice. That’s a fact Ms. Babcock seems to have conveniently overlooked.
And those three nominees whose names were sent to the Governor? All women. You know, gender diversity. Somehow, in her zeal to mischaracterize the Chief Justice, Ms. Babcock omitted that fact, too.
Qualifications? Under the Commission’s Bylaws, they are the foremost consideration:
The Judicial Council shall nominate for judicial office . . . those judges and members of the bar who stand out as most qualified based on the following criteria: professional competence, including written and oral communication skills; diligence and administrative skills; integrity; fairness; temperament; judgment, including common sense; legal and life experience; demonstrated commitment to public and community service, and demonstrated commitment to equal justice and the legal needs of the diverse communities of Alaska.
As a part of the nomination process, the Alaska Judicial Council goes through a thorough, long-standing polling process based upon that bylaw, consulting lawyers, law-enforcement officials, jurors and court personnel regarding each candidate. Ms. Babcock didn’t mention that, either. The results, where the candidates are rated on a scale of 1 to 5?2
Source: Alaska Judicial Council Judicial Selection Survey, Technical Report
The three candidates nominated to the Governor were the three candidates with the highest overall ratings. Council member Babcock’s nominee finished a full point lower than the three selected. Chief Justice Bolger, WC suspects, was unhappy about having to vote at all – the Chief Justices usually are – but when forced to do so, voted consistently with the Bylaw to send as nominees the three candidates with the highest ratings. Ms. Babcock omitted those facts, as well.
In fact, Ms. Babcock’s omission paints a picture of a biased, unfair appointment process when, if you have all the facts, the process is as objective, informed and neutral as possible. It might be that Kristie Babcock’s motives, and the motive for her distorted op-ed piece, is to turn public sentiment against the current judicial selection process. Certainly Tuckerman Babcock seeks that goal. He wants Republican, conservative Republican, judges and justices. He wants to politicize the process. You know, like Illinois. And is willing push for a constitutional amendment to get it. A cynic might see Kristie Babcock’s woefully misleading hatchet job on Joel Bolger as a piece of that effort.
WC agrees that some racial diversity on the Alaska Supreme Court would be a great thing. A justice from rural Alaska would also be good. But not at the expense of nominating anyone but the best qualified candidates. And gender diversity is a pretty good step in that direction. We can have a discussion about the goal of racial diversity. But let’s have an honest one, not a misleading and distorted hatchet job attacking a distinguished jurist who has served Alaska faithfully and well.3
And let’s not let Kristie Babcock (or Tuckerman Babcock) get away with throwing out a judicial selection process that serves Alaskans exceptionally well.4
Source: Wickersham’s Conscience
1 Voters get their shot at judges and justices. All Alaska judges and justices stand for retention election at regular intervals. The length of the interval depends on the kind of judge. A few judges and one justice have been rejected by the voters, usually on the recommendation of . . . wait for it . . . the Alaska Judicial Council.
2 Disclaimers: (a) WC served for several years on the committee that advises and assists the Alaska Judicial Council in its polling. The Committee and the Council work very, very hard to make the questions and the ratings as insightful and helpful to the Council as possible. (b) WC counts candidate Jon Woodman as a personal friend, former colleague and occasional house guest. But you don’t see WC complaining his friend didn’t get nominated; Jon is a great trial judge but wasn’t as qualified as the three nominees.
3 WC doesn’t know Ms. Babcock’s preferred candidate well, and has only appeared before him – telephonically – once. After reading his entire application, WC thinks he has real potential. WC encourages him to continue to develop his skills and apply fo future openings on the supreme court. WC doesn’t hold Ms. Babcock’s screed and clumsy support against him. Alaska readers shouldn’t, either.
4 As WC has noted earlier, Ms. Babcock lives in Alaska’s Third Judicial District. Her appointment to the Alaska Judicial Council means all three lay members of the AJC are from the Third Judicial District. The Alaska Constitution, Article IV, section 8, requires, “Appointments shall be made with due consideration to area representation and without regard to political affiliation.” The attorney members, by contrast, are from the First, Third and Fourth Judicial Districts. It’s ironic, at least, and more than a little hypocritical, that Ms. Babcock is complaining about an absence of diversity.