I guess, for the governor, it depends on what the definition of "shall" is. The whole of Article IV, Sec. 5, Constitution of the State of Alaska, provides: "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."
Article IV, Sec. 8, provides the judicial council is established with three members appointed by the state bar association and three members appointed by the governor and confirmed by the legislature. The presiding officer is the chief justice of the Alaska Supreme Court who sits in an ex officio capacity. This section mandates the council operate by rules its members adopt, not rules the governor wants adopted. ("The judicial council shall act by concurrence of four or more members and according to rules which it adopts.")
Those two constitutional provisions are at the heart of a slanging match between the governor and the judicial council (although, to be accurate, the slanging is coming exclusively from the third floor of the capitol and not from the judicial council). The council forwarded to the governor three names - one more than the constitution requires - for a vacant superior court judgeship in Anchorage. The governor rejected the three and asked for more names, presumably a list that includes his legislative gunslinger from the Department of Law, Mr. Scott Nordstrand.
That request violates a basic precept of the constitution the governor swore to uphold. If there's any doubt about the meaning of the "shalls" in Article IV, this excerpt from the constitutional convention minutes is instructive:
SUNDBORG: May I be permitted to address a question to Mr. McLaughlin (chair of the convention's judiciary committee)?
PRESIDENT EGAN: You may, if there is no objection.
SUNDBORG: Mr. McLaughlin, several days ago when we were discussing this article for the first time, as I heard you, you answered a question, asked by someone, on whether if the governor did not like the names suggested to him he could call for more names and my recollection was that you answered that in that case more names would be supplied. Was that a considered answer?
MCLAUGHLIN: That was not a considered answer. I believe that I corrected myself. Under this article. . . the governor has no right of refusal, he cannot refuse. The obvious answer to it, that's the way the section was intended, if there was any other intent it would mean, particularly with the present status of the Alaska Bar, that if the governor refused, he would very promptly exhaust all nominees and he would pick the man that he wanted.
SUNDBORG: Thank you. I just wanted to clear the record.
The Alaskans who crafted the constitution wanted to preclude what one constitutional delegate characterized in unchallenged debate as a judicial selection process that allows judges to be "picked and plucked directly from the political ward." Tilting toward merit, they believed, is more important than political amigos.
The governor's rejection of the most qualified forwarded by the non-partisan council really smacks of neo-imperialism. He wants to "pick and pluck" judges the way he gets to "pick and pluck" U.S. senators or the way he "picked and plucked" his five appointments to the state Legislature (can anyone forget his plucking for a state senate seat Jim Elkins and then unpicking him right after Mr. Elkins had the temerity to criticize the governor's longevity bonus veto?), but the constitution gets in his way.
Under our constitution, the governor can only get what he wants by:
1) proposing a constitutional amendment, to the Legislature, that tells the judicial council to forward all qualified names instead of those they consider the most qualified; then
2) pressing his get-along legislative cronies to pass it with the necessary two-thirds vote in each chamber; and then
3) persuading Alaskans to ratify the change at the ballot box.
If he successfully clears these hurdles the governor then can hold out his pinky ring and make the judicial council kiss it. If not, he should accede to the constitution the way all other governors have.
Sen. Kim Elton represents Juneau.