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Jul. 3—There's nothing ambiguous about Article 4, Section 5 of the Alaska Constitution: "The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council."
And yet, for a second time in three years, Gov. Mike Dunleavy, who professes to have great respect for the Alaska Constitution, has opted to thumb his nose at it — and at a slate of eminently qualified judges put forth by the council.
If you've forgotten how Alaska's judicial appointment system works since the last time the governor provoked this particular constitutional crisis, it's pretty simple:
1. When a seat on the Alaska Superior Court or Supreme Court becomes vacant, or when a sitting member announces his or her retirement, the nonpartisan seven-member Alaska Judicial Council asks for applications.
2. The Judicial Council reviews applicants, researches ratings given to them by other judges and attorneys and their record on the bench, if they've been judges for some time already. From the list of applicants, they choose two or more and forward their names to the governor.
3. The governor picks from the finalists selected by the council.
Steps 1 and 2 haven't historically been a problem, but Step 3 has been a stumbling block for Gov. Dunleavy. In 2019, he refused to select a judge for a pending Palmer Superior Court vacancy, relenting only after an intervention by then-Chief Justice Joel Bolger. The episode became the basis for the ongoing gubernatorial recall campaign — and now Dunleavy has done it again. This time, ironically, it's the seat of Bolger himself that's in play.
As in the Palmer vacancy, what's truly at issue isn't the qualifications of the nominees or their fitness for office. It's also not about the governor's claimed interest in diversity and equity — it's simply about partisan politics. In both cases, Gov. Dunleavy has cited specific candidates he wanted to see included — and it's a safe bet that he'd pick them if they were. But that's not the way it works, and there's a very good reason it doesn't.
Alaska's system, where a nonpartisan body selects judges from which the governor can choose, is the best judicial selection process by a long shot. In states where judges are elected, the judiciary becomes another hyper-partisan forum, and active campaigning — and the related expenses — make would-be judges beholden to donors. Likewise, in states where the governor or Legislature select judges directly, they can and do apply litmus tests to ensure the candidates they pick reflect their own political biases, with qualifications and temperament secondary at best. In this instance, the judge Gov. Dunleavy wants for the Alaska Supreme Court scored near the bottom — in a survey of his peers and colleagues — of the group of applicants the Judicial Council reviewed, but is viewed by social conservatives as being friendly to their priorities.
Gov. Dunleavy has openly chafed against the Judicial Council's makeup and its selection process. Made up of three public members selected by the governor and three members selected by the Alaska Bar Association, as well as the Chief Justice of the Alaska Supreme Court, the council's structure is intended as a check against the executive branch's ability to pack the state's courts with ideological allies. Historically, it's a system that has worked well — in Alaska's system, judges' partisan lean takes a backseat to their qualification for the court seats they're seeking. The governor and his socially conservative supporters would say that the Alaska Bar Association controls the process to nominate left-leaning judges. That is simply not the case. When governors seek to change the rules or force different selections, as Gov. Dunleavy is making a habit of doing, it's not hard to tell that it's because they want to hold sway over more of the levers of government. Alaskans should be extremely wary of such a move.
Some 245 years ago this weekend, during a sweltering summer in Philadelphia, America's Second Continental Congress hammered out their vision for a new nation, the principles that would guide it, and their grievances with the rule of Britain. Among a laundry list of actions that disenfranchised the would-be nation, there was a common theme: King George III had subjugated the other branches of government to the point that Americans' rights were dependent upon his whims — and he had a habit of encroaching on the freedoms they considered inalienable.
Gov. Dunleavy isn't King George III. But there is a seemingly universal tendency among chief executives to amass, consolidate and usurp power from the government's legislative and judicial branches, destabilizing the balance of power that America's framers — and, for that matter, Alaska's — were so wise to establish. The framers of Alaska's constitution saw this as a concern, and clearly established a system of checks and balances. It's our duty as Americans and Alaskans to recognize a pure power grab, and to call it out when we see it. The health of our republic requires our active participation.
As for Gov. Dunleavy specifically, he has made his name and staked his reputation on being a constitutionalist — it is his respect for the Alaska Constitution, he has said, that motivated him to sue the Legislature's lawyers just two weeks ago over the budget's implementation date. This is a case in which the Alaska Constitution could not be more clear, and every governor in our state's history has managed to abide by it. The governor has a duty to choose a Supreme Court justice from the Judicial Council's slate by July 11. If he doesn't, we should all be asking: Where is Gov. Dunleavy's purported respect for the constitution?