Prior to statehood, delegates to Alaska’s Constitutional Convention debated what would be the best way to choose Alaska’s future judges. They wanted Alaskans to be served by high-quality judges who would be independent of political and public pressures and decide cases solely on the rule of law.
The delegates explored two methods used for choosing judges: requiring judges to run for judicial office in a competitive election; or appointing judges based on their professional merit. Elections would require judicial candidates to raise campaign funds like any other political candidate, whereas merit-based appointments would eliminate campaigning – and the need for campaign fundraising – altogether.
Anticipating that judges who had to raise funds for their election campaign – and then re-election campaign – would be “peering over their shoulders to see if [their] decisions were popular,”* delegates feared that elected judges:
- might be inclined to decide cases based upon popular or political considerations rather than the law to ensure their re-election and
- “would not treat all litigants fairly.”
Source: Statement of Constitutional Convention Delegate Delegate L. Barr
Negative experiences with politically-appointed Territorial judges stoked the delegates’ fears. They wanted Alaska’s judges to be independent of political or other special interest pressures, and understood that the method chosen to select those judges would play a pivotal role in assuring this objective:
Without qualification… all of us here want an independent judiciary, a judiciary that will not be swayed by the public will at any particular moment, a judiciary that will not be subject to pressure from the executive branch of government.
After hearing from experts in other states regarding election of judges versus appointment of judges, the delegates concluded that they had no confidence that elections would produce high-quality judges. They created a merit-based appointment process that is modeled after what is known as the Missouri Plan and is now embedded in Article IV of the Alaska Constitution. The governor appoints one of the top two or more applicants nominated by the Alaska Judicial Council after the Council completes exhaustive evaluations of each applicant.
While delegates were emphatic about using a merit system for appointing judges to ensure judicial independence, they recognized that they also needed to somehow ensure judicial accountability to Alaska voters. They did so by requiring judges to be placed on a nonpartisan ballot after their first few years on the court, allowing voters to decide whether the judge should remain on the court. As George McLaughlin, chairman of the Constitutional Convention Committee on the Judiciary, explained:
It is the best compromise and the best solution to a vexing problem between those who feel we should have lifetime tenure so the judges can be absolutely independent or whether we should have a short term so the judges could be subject to the popular will. The popular will should be expressed even in the control of the judiciary, but the way to control it is to put the judge on a nonpartisan ballot. . . . He is running against himself, he is not running against someone else.
Article IV of the Alaska Constitution provides Alaskans with an opportunity to participate in the evaluation of judges who are up for retention. The Alaska Judicial Council seeks information and input from the public as it conducts a thorough investigation of the judge’s performance by:
- surveying every lawyer in the state
- surveying all court employees, police officers, social workers, probation officers, and jurors who have appeared in the judge’s court
- interviewing litigants who have appeared before the judge in a case
- conducting public hearings
- analyzing the rates at which the appellate courts affirm the judge’s decisions
- analyzing the number of times a party to a case preempts a judge from hearing cases
- looking at the timeliness of the judge’s decisions where appropriate, interviewing the judge who is standing for retention
After evaluating all of the information gathered through this rigorous process, the Alaska Judicial Council votes in open session whether or not to recommend the judge for retention. The Judicial Council then publishes this information on its website to provide voters with sufficient information to decide whether or not to retain the judge.
It is worth repeating that when judges appear on the ballot for their retention elections, the elections are nonpartisan and the judge is not running against anyone. A majority of Alaskan voters decide whether a judge will remain on the court.