Court upholds Alaska's judicial selection process

Posted: Sunday, October 03, 2010

ANCHORAGE - A federal appeals court has upheld the way Alaska selects Superior Court judges and Supreme Court justices, rejecting a lawsuit that claimed lawyers have too much say in the process.

A three-judge panel of the 9th U.S. Circuit Court of Appeals held unanimously that the system doesn't violate the U.S. Constitution and that if people want to change it, they'll have to amend Alaska's Constitution.

Alaska has had its merit-based system for selecting judges ever since statehood: The seven-member Alaska Judicial Council nominates at least two candidates from a list of applicants for each open judgeship, and the governor appoints from those nominated. The council is made up of three lawyers picked by the state bar association, three non-lawyers, and the chief justice of the Alaska Supreme Court.

Anchorage lawyer Kenneth Kirk, who has applied for judgeships but has never been nominated, filed the lawsuit along with two other Alaskans, Michael Miller and Carl Ekstrom. They wanted everyone who took part in the nomination process to be an elected official or be appointed by an elected official.

Their case was thrown out of federal court in Anchorage, but they appealed. One of their attorneys is well-known conservative lawyer James Bopp of Indiana.

"Plaintiffs are hard-pressed to find legal support for the principle they seek to establish," Judge Mary M. Schroeder wrote for the 9th Circuit panel. "The legal principle plaintiffs ask the courts to establish is in fact a change in policy that requires amendment to the Alaska Constitution. To date, there is no indication of any desire on the part of plaintiffs to invoke the amendment process."

The judges noted that the ultimate power to appoint is with the governor, who is elected by the people of Alaska.

The court also said the people can reject judges in subsequent retention elections.

Alaska Attorney General Dan Sullivan said the system was designed to insulate judicial appointees from politics.

"This system has served us well ever since statehood," said Sullivan. "Alaska has a well-deserved reputation for outstanding professional and dedicated Superior Court judges and Supreme Court justices."

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