The 'Jib Standard' and the new transparency
By Thomas Van Flein, Editor
It is not often the inner workings of the Alaska Judicial Council make news, so we at the Bar Rag decided to exploit this for all it was worth. Anyone who has watched the selection of judicial candidates over the years knows that what may seem arbitrary, secretive, and whimsical to the untrained eye is in fact?arbitrary, secretive and whimsical. But we like it that way.
Picking the final candidates for a judgeship is like making sausage. Somebody has to do the messy part, but just show us the final vacuum packed product. Or maybe defining the standards used to select a judge is like defining pornography or explaining the popularity of reality TV; all are impossible to articulate. Maybe a council member "likes the cut of her jib" when voting on a candidate. That's a good enough reason in anyone's book. It's the "jib standard." The Governor says he wants stated guidelines, rather than the "jib standard."
Here are my suggested guidelines for superior court judicial applicants: (1) no one younger than 40. It takes a few years of living, perhaps even some children (the more problematic the better), before one can pass judgment on others and their children's mistakes. (2) No party hacks. The day-to-day business of the courts bears no resemblance to the hot-button political and social issues for which people blame the courts. (3) Tolerance. Not tolerance as in diversity and singing 'round the campfire, but tolerance for pro se litigants; tolerance for lawyers (sometimes demonstrated by one's reputation and bar poll ranking); tolerance for staff and law clerks who research everything except the real issue; tolerance for a presiding judge who will ride you like a whipped donkey until you get the paperwork turned in; and tolerance for a supreme court that will reverse you no matter how closely you think adhered to their most recent decision or instructions on remand. All of this is actually included in the "jib standard."
I will concede that our system of selecting our state court judges is not perfect. But its political overtones are thankfully muted and it sure beats anything else out there. Have you ever been down in the states where there is an election for judges? To call it unseemly is to pay it a compliment. There seems to be only one platform a candidate can run on: "I'll be tough on crime." Nobody runs with the slogan "I am up to speed on the hearsay rule" or "I'll treat both sides with respect." How would you like to get the call from a judge running for re-election asking you to buy a table at the next fundraiser for only $1,500? I have seen that in Nevada. Even worse, what will your client think about the system when she learns that the opposing counsel's firm bought two tables for the judge about to rule on the motion to dismiss, and you did not buy one?
Direct election is just one alternative. I think the governor would like to make the pick based on his own criteria; much like the President does for federal judges. Some have questioned the good of holding the highest office in the state if you can't put some friends and family on the bench. I know if I was governor I would try to load up the state payroll with my deadbeat friends and family. It's practically an American tradition.
The Governor spent some time as a U.S. Senator, but selecting federal judges is almost entirely a political exercise, the exact opposite of Alaska's system. One commentator posits:
"As to the political aspects of judges, the appointment of judgeships by governors (or the president in federal courts) has always been part and parcel of the political spoils or patronage system. For example, 97% of President Reagan's appointments to the federal bench were Republicans. Thus, in the overwhelming majority of cases there is an umbilical cord between the appointment and politics. Either the appointee has personally labored long and hard in the political vineyards, or he is a favored friend of one who has..." --V. Bugliosi, "The Betrayal of America" p. 24 (2001).
Contrast that to our merit based system. I find our de-politicized and merit-based system of selection to be so superior that it is surprising the other states and the federal government don't copy us. The results of our system speak volumes: Only three judges in the history of the state have failed to be retained in election. None has been impeached. None has been removed from office under a cloud of scandal (I am excluding Judge Noyes and the Nome claim-jumping scandal--he was a political appointee before statehood...case in point). The other states cannot match that record. In short, our system is not broken and it certainly does not need fixing.
What of the stated concerns of "transparency" or "hidden agendas"? It is hard to accept either as legitimate concerns. First, the Council's proceedings are generally public up to the point of deliberating on a candidate's particular attributes. A closed session allows for a frank discussion. The current legislative majority in Juneau swears by its closed door sessions for the same reason. Second, overlooked in all this is that the Governor already gets to pick 50% of the Council, so the executive branch is well-represented.
As for "hidden agendas," the only thing hidden here is what is not being said, but yet is the most obvious. So let me say it: it seems to most that the executive branch would like to pick judges based on its selection criteria and not be limited by whom the Council finds most qualified.
It is understandable for those with a political position to try to horn in on some of this action. Since the real motivation is to politicize this process, I say stand up and say so. Let's have an honest discussion about this, not a discussion about "transparency." Maybe we should change the state constitution and have our prospective judges picked by the governor and go through a legislative hearing to vet their political pedigree. Maybe not. But that is the issue, so let's talk about that.
Because this issue presented constitutional brinkmanship between the Council and the Governor, the Bar Rag spent some of its slush fund to get confidential materials from the Governor's office, as well as the Council. It was much harder to bribe the Council staff. The channels for getting confidential information from broke staffers in Juneau were much easier to open than the hard bargaining Council staffers who wanted more than just cash, but back-stage passes and a free Pontiac. In the interest of public disclosure, we met the demands and here are portions of two transcripts we received that we thought you might find interesting:
TRANSCRIPT OF GOVERNOR'S MEETING, 9/2/04
Governor: But I don't know any of those folks and as far as I can tell none of them gave me any money in the last election and I haven't seen them working the precinct either . . .
Chief of staff: Governor, that's the federal system. Here, the Judicial Council makes the first cut and you have to pick from those they select.
Governor: Now Jim, maybe you forget who signs the paychecks around here. But I want to pick who I want and that's the way its gonna be . . . you get on the phone to that Council and let them know I am on to their little game and that I want a whole new batch of names with everyone on it . .
Chief of Staff: Well, of course I know who signs the checks, big guy. I'll make the call and let them know we are not happy . . .[sounds of door opening]
[Unidentified voice] We still on for the poker game tonight at the Whiskey Hut?
Governor: Loren, we're having a meeting here.
[Unidentified voice] Sorry, boss.
Governor: Anyway, give them a Cheney. Tell them I said they can all #%&@# themselves.
Chief of Staff: How about instead of that we say you reject their submissions and to send us all the applicants?
ALASKA JUDICIAL COUNCIL
TRANSCRIPT OF MEETING, 9/3/04
[Indiscernible] . . . just what should we say to the Governor's request that we send him more names?
[Unidentified voice] How about "Go *%#*@! yourself"?
[Simultaneous talking, unidentified voice] Too vice-presidential. But direct and concise.
[Unidentified voice] How about that sentiment, but we say something like "We have met our constitutional obligation."
All in favor say "Aye."