UPDATED: Palin’s Judicial Appointment and "The Missouri Plan"; How Murkowski Tried to Take On the AJC and Failed; Christen’s and Smith’s Applications

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As you know, Governor Palin recently named a new justice to the Alaska Supreme Court. What you may not know is that the constitutional process by which Governor Palin made her decision seriously limited her authority in the selection process.

Alaska is one of 12 states that operate under the “Nonpartisan Court Plan,” or what is commonly known as “The Missouri Plan.” The Missouri Courts website provides some history on the plan:

During the 1930s, the public became increasingly dissatisfied with the increasing role of politics in judicial selection and judicial decision-making. Judges were plagued by outside influences due to the political aspects of the election process, and dockets were congested due to time the judges spent campaigning.

Then, in November 1940, voters amended the Missouri constitution by adopting the “Nonpartisan Selection of Judges Court Plan,” which was placed on the ballot by initiative petition. The adoption of the plan by initiative referendum resulted from a public backlash against the widespread abuses of the judicial system by the “Boss Tom” Pendergast political machine in Kansas City and by the political control exhibited by ward bosses in St. Louis.

The basic premise of the plan is to remove the power of the executive to make purely political judicial appointments. The plan also allows the people of the state to rate the performance of new justices by voting on whether or not they should retain their position on the bench.

The State of Alaska operates under this plan, as clearly stated in the Alaska Constitution:

§ 5. Nomination and Appointment

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.

§ 6. Approval or Rejection

Each supreme court justice and superior court judge shall, in the manner provided by law, be subject to approval or rejection on a nonpartisan ballot at the first general election held more than three years after his appointment. Thereafter, each supreme court justice shall be subject to approval or rejection in a like manner every tenth year, and each superior court judge, every sixth year.

The Missouri Plan process is quite simple:

1. A lawyer based commission, in this case the Alaska Judicial Council, forwards a list of names to the governor for consideration.
2. The governor then has 60 days in which to appoint someone from the list.
3. If the governor does not select from the list within the 60 day time period, the committee will simply place their choice on the bench, regardless of the governor’s objections.
4. The governor does not have the luxury of selecting his or her own choice from outside of the list. Ideally, this prevents the governor from appointing justices based on purely political biases.

Some commenters have wondered why Governor Palin did not ask the Alaska Judicial Council for a list containing more names. Unfortunately for Governor Palin, the Council does not and will not fulfill this request. Palin’s predecessor, Frank Murkowski, attempted this tactic but faced statewide embarrassment when the Council rejected his demand. The Council wields the most influence in this process. We do know that Governor Palin requested extensive information on both finalists, Morgan Christen and Eric Smith, and decided on Christen. It is clear that both candidates for the bench did not align with Governor Palin’s ideal judicial philosophies.

Under the Missouri Plan, Governor Palin was forced to choose between Christen and Smith. In my opinion, Governor Palin selected Christen over Smith, because Smith has a history of environmental activism from the bench. Alaska is a state reliant on energy exploration and drilling, and an activist on the bench, such as Smith, would do long term damage to the Alaskan economy. Governor Palin did the best she could with the hand she was dealt.

UPDATE by Ramrocks: There seems to be some question as to whether Christen is as awful a choice as some Alaska conservatives are claiming. It seems clearer by the minute that Gov. Palin made the right decision. And the people of Alaska have the ability to vote Christen out if they choose to do so. That’s part of the Missouri Plan! Update: Our friend Tom disagrees with the guy at the Alaska Dispatch on his assessment of Christen.

UPDATE by VO: This reminds me of a battle that Missouri Governor Matt Blunt ran into, back in 2007, over a very similar issue.

Faced with choosing from among three unacceptable candidates, Republican Governor Matt Blunt criticized the Commission’s highly politicized, backroom selection process and left open the possibility of lodging a protest by declining to select any of the three. While that would allow the Commission to make the final selection of a supreme court justice, many conservatives thought that rejecting all three finalists would be the principled response.

However, Governor Blunt instead backed down and appointed Judge Patricia Breckenridge, one of the three finalists, to the state’s supreme court. Those working to advance the rule of law in Missouri are none too happy with this news. In fact, a coalition of national conservative leaders just released a strongly worded memo chastising Governor Blunt for his likely selection of Breckenridge.

The Missouri Plan was a scheme that was invented before the state bar associations became so closely aligned with Democratic Party interest groups. As time goes by, this causes an ever-leftward slide in the courts. But it’s up to the Alaska legislature and the people to amend their constitution if this is a problem.

UPDATE by JR: (H/T Sinistar) Former Supreme Court Justice Sandra Day O’Connor favors the plan, with some modifications:

? Decrease the influence of lawyers on the selection commission, perhaps by raising the number of commission members.

? Make the selection process more transparent. She said Arizona allows citizens to attend the screening hearings of prospective nominees. Missouri should do the same and rid itself of a “smoke-filled room” perception, she said.

? Get people involved. She recommended a good start would be teaching civics to children. To that end, O’Connor has helped create an interactive Web site, ourcourts.org, aimed at middle school students.

UPDATE II by Ramrocks:

Sinistar has dug up a fascinating article by Sally J. Suddock from the Alaska Bar Rag concerning former Governor Frank Murkowski’s show down with the Alaska Judicial Council over appointees. The article is no longer available online, but the following is an extensive excerpt:

By now, as the Bar Rag went to press, there can’t be an attorney in Alaska who is not aware that the Governor (a) has taken aim at the Alaska Judicial Council; (b) rejected “after careful consideration” the three “most qualified” applicants the council sent forward for his appointment to an Anchorage Superior Court judgeship; (c) wants to look at a bigger pool of candidates; and (d) suggests the constitution’s selection process should be revisited.

Nor could it have escaped anyone’s notice that this flurry of press releases, op-ed columns, TV and radio sound bites and letters to the editor have morphed into a decidedly partisan (as in Democrats vs. Republicans) issue.

At issue is the role and practice of the judicial council, charged in the Alaska Constitution with the sole responsibility for screening, vetting, and recommending candidates for the Governor’s appointment to Superior and Supreme Court judgeships (and, since constitutional adoption, Court of Appeals judgeships.)


Gov. Frank Murkowski, like numerous other governors before him who have groused about the Executive Branch’s lack of control over these appointments, touched off the current controversy Aug. 26, when he wrote the judicial council that he rejected the three nominees that the council had selected from among nine attorneys who had applied for the seat to be vacated by Judge John Reese. (An unprecedented move by a governor.)


The council has declined to revisit its process and reconsider the number of nominees it has submitted to the governor; in a special meeting Sept. 3, the council voted unanimously to let its action stand. “We spent a lot of time and a lot of effort to send him the most qualified,” said member Bill Gordon. “We’ve done what we’re supposed to do.”

Speaking principally through his chief of staff Jim Clark, the Governor has said that “as the official who must stand for election and is thus accountable to the people for the person selected to be a judge, the governor believes we will have better judges if he is able to choose from among the largest possible pool of qualified applicants.”

Murkowski’s resistance to the three nominees was quickly seized upon by legislative Democrats as “neo-imperialism” and by the Anchorage Daily News as a “power grab.”

From the Governor’s perspective, the judicial council’s procedure to nominate only the “most qualified” of applicants is overly vague and, perhaps, outdated. “A debate regarding the 50-year-old provision of the constitution is healthy,” wrote Clark in an op-ed column Sept. 13.

The public wasn’t behind Murkowski on this one. They didn’t want to tinker with the judicial process, as Suddock noted:

Commentary in the current skirmish appears to be weighing heavily on the side of “it ain’t broke.”

The Bar Association Board of Governors approved a resolution Sept. 14 saying in part “that the Alaska Constitution for selecting judges has served the people of Alaska exceptionally well for more than 45 years.” (8 yeas, 2 abstentions, one nay.)

Minority (Democratic Party) members of the House and Senate Judiciary Committees have argued vigorously in the media that Alaska’s process “has worked well for 44 years-in a transparent process except for (the council’s) personal interviews and deliberations,” said Sen. Johnny Ellis.

The Alaska Public Interest Research Group leaped into the fray early with a lawsuit (as yet unripe) calling for the governor to be compelled to appoint from the list of council nominees.

On the other side of the aisle, there is an absence of vigorous defense of the governor beyond his chief of staff and the Majority (Republican) chairs of the Judiciary Committees.

Murkowski eventually caved. He got to play the “tough guy” with the Alaska Judicial Council, but he was ultimately embarrassed into picking one of their candidates. His actions had no effect whatsoever, except to make him look like a disingenuous fool:

As the Bar Rag went to press, Jim Clark, Gov. Frank Murkowski’s Chief of Staff, told Anchorage news media Sept. 17 that the Governor would appoint a new Superior Court Judge from the judicial council’s list of 3 candidates. The Anchorage Daily News reported that “The governor never planned to challenge the council’s constitutional authority to choose the most qualified candidates for judicial appointments, Clark said. The system Alaskans have used since statehood has worked well. “The governor simply wanted to ask the council to use its constitutional authority to ‘tweak’ its own selection process so more of the qualified applicants for judgeships make it to the governor.”

Say what you will about Sarah Palin, but she does not make the same mistakes as Frank Murkowski. Her critics, like Dan Fagan, wanted her to walk right back into the same trap that Murkowski walked into. Our gal is smarter than that.

UPDATE III by Ramrocks: Sinistar has made another interesting discovery. Both Morgan Christen and Eric Smith were required to submit applications to the Alaska Judicial Council to be considered for the review process. One section of the application asks the candidate to:

Please provide the Council with information that you would like the Council to consider about other legal and nonlegal organizations and clubs which you are member, including civic, charitable, religious, educational, social and fraternal organizations. Please indicate whether you participate in the organization’s activities, or simply hold a membership. Your involvement in the community is one of the criteria the Council uses in its evaluations. The Council does not use affiliation with a particular group as a criterion except to the extend that it might raise questions of conflict of interest or would affect an applicant’s ability to impartially apply the law.

There is no mention in Christen’s application of her being a board member of Planned Parenthood. However, Sinistar points out that Christen could have conveniently left that information out of her application.

Eric Smith’s application, on the other hand, does list his affiliation with a number of environmental groups:

Board of Trustees, Alaska Conservation Foundation
Member, Trustees for Alaska, Southeast Alaska Conservation Council, Northern Alaska Environmental Center, Alaska Center for the Environment, Natural Resources Defense Council, Alaska Marine Conservation Council, Alaska Public Interest Research Group

In her application, Christen described her judicial philosophy as “faithfulness to the Alaska Constitution, adherence to the doctrine of separation of powers and the insistence that all litigants be treated with courtesy and respect.”

Not bad.

UPDATE II by VO: Some people have asked who appointed the current members of the Alaska Judicial Council. Here is the current membership roster. There are a total of seven members. Three of them – Cannon, Fitzgerald, and Menendez – are from the liberal Bar Association. Of the three gubernatorial “non-attorney” appointees, two – Gordon and Williams – were appointed by Murkowski. Only one, Clarke, was appointed by Palin. The chairman, Chief Justice Dana Fabe, was appointed by Democratic Governor Tony Knowles.

UPDATE by Sinistar: With regards to VO’s Update II, Gov. Palin should be appointing a new “non-attorney” member for the Alaska Judicial Council in the near future. It appears that Bill Gordon’s term ended 3/1/09.

UPDATE IV by Ramrocks: As I noted in my third update, Christen did not list her Planned Parenthood board membership in her application to the AJC for the Supreme Court appointment. Some might see this was calculation on her part because she knew that Sarah Palin would be making the final decision on the appointment. However, Christen also omitted any mention of her association with Planned Parenthood on her 2001 application for the Anchorage Superior Court appointment. The governor at that time was Tony Knowles, a liberal Democrat and vocal proponent of abortion. Her connection with Planned Parenthood wouldn’t have hurt her with Knowles; in fact, it might have helped. But she did not list it. Perhaps she did not want to appear to be taking sides on this issue. To openly take a position on this or any other social or political issue would disqualify her from consideration. Make of this what you will.

UPDATE V by Ramrocks: Please see here for Gov. Palin’s Facebook statement about the judicial appointment and her pro-life beliefs.

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