Alaska Republican lawmakers can pretty much do whatever they want, and they know it. Governor Sean Parnell is firmly in command of the executive office. GOP majorities in the legislature enjoy nearly three-quarters margins over the minority. That’s a lot of power. So far, they’ve taken the ball and run with it. In a car. A really fast car, racing down a really long road, with the rest of us clutching our seat belts, dreaming of off-ramps.
Along the way, we’ve been introduced to multiple proposed constitutional amendments, on topics ranging from privatizing education to making the attorney general an elected position.
Any such proposal requires a two-thirds vote to pass the house and senate before it can land on a ballot near you. That’s generally the biggest hurdle; it’s really hard to get two-thirds of any plurality to agree on anything. But Alaska is, effectively, under one-party rule. A two-thirds vote is a luxury the majority enjoys, so long as the ideas aren’t so radical as to fracture the caucus.
Once that first threshold is reached, just a simple majority of voters is required to alter the constitution. In the 40 times Alaskans have entertained proposed amendments, just 12 have been defeated.
So, what do you get the legislator who has everything?
Senator Pete Kelly (R-Fairbanks) has had a couple ideas.
In 2001, Kelly was in the state senate while the Alaska Supreme Court deliberated over a case concerning women’s reproductive rights. In question was whether the state could deny Medicaid funding for medically necessary abortions. In State of Alaska Department of Health and Social Services v. Planned Parenthood, the court found the denial of services to be a violation of the state constitution’s equal protection clause.
”These [Supreme Court Justices] seem not to be able to read our constitution,” the ADN’s Molly Brown quoted Kelly after the court ruling. ”I guess we’ll have to amend it and make it more clear.”
Thirteen years (and a lot of legislation) later, Kelly has decided to give that effort a go. Except, rather than broach the topic of women’s reproductive rights directly, Kelly has chosen to go after the courts, via the Alaska Judicial Council.
The council is tasked by the Alaska Constitution with many important jobs, integral to the judicial branch. They are responsible for finding the most qualified candidates to submit to the governor as applicants to serve as supreme court justices and superior court judges. The council also evaluates the performance of those appointed to the bench — making recommendations regarding retention or rejection — and works on ways to improve the state’s administration of justice.
Or, as Kelly sees it: all the court decisions that he disagrees with are their fault.
Last session, Kelly introduced SB76, which sought to remove the council’s ability to make recommendations on retention or rejection of judges at all. It got no traction, outside of blast emails and blog posts from the far right Alaska Family Council, a group that shares a common ideology and disdain for the rule of law.
Over the past two weeks, Kelly has been lobbying for his own constitutional amendment to change the membership of the council. Senate Joint Resolution 21 is currently awaiting a third hearing in the Senate Judiciary Committee scheduled for this afternoon. Kelly’s proposal aims to employ an unpopular strategy ripped from Franklin Roosevelt’s “Worst Ideas” file: he’s trying to stack the court.
More specifically, he’s trying to stack the Judicial Council, which — though independent of the courts — bears substantial influence on who the governor appoints to key judicial positions.
The council, as set out in the constitution, comprises seven members. Three members are non-attorney members, appointed by the governor and confirmed by the legislature for six year terms (thus, the most prone to be political appointments). They are balanced by three attorney members selected by the Alaska Bar Association, also for six year terms. The seventh member, who also serves as chair, is the chief justice of the Alaska Supreme Court.
The even-keeled composition exists to keep the public in the loop, while maintaining a mechanism that does its best to keep politics out.
Through Kelly’s ideologically fixated prism, however, this translates to a 4-3 split. He told the Senate Judiciary Committee, during the bill’s first hearing on February 14, that the attorney members and chief justice acted like a political majority; suppressing the voting power of the non-attorney minority.
Kelly believes the non-attorney members are representative of “the people” (though, more accurately, he means that the legislature has authority over deciding who they are). “Everywhere else in their government they see accountability and there isn’t in this group,” he told the Judiciary Committee. “And they’re not getting the results they want.”
All judicial appointments are subject to retention votes — a point skipped over by the committee. Senator Lesil McGuire (R-Anchorage), a co-sponsor of SJR21, called those votes “virtually meaningless.”
(I compiled copious amounts of notes on the first two hearings, only to read a brilliant breakdown by Lisa Demer over the weekend. I recommend it.)
Kelly’s initial amendment sought to more than double the membership of the council. A replacement version, offered by Coghill, reduced the number to ten. In both cases, the intent is clear: increase the number of non-attorney members — who are appointed by the governor and confirmed by the legislature — so that they can overrule the attorney members and chief justice as they see fit. So long as Republicans remain in power, it makes the process of appointing judges and justices a lot less impartial, and a lot more ideological.
In reality, there is no actual political problem with the Judicial Council. Speaking as the AJC’s general counsel, Nancy Meade dispelled many of Kelly’s assertions about partisan lines between the attorney and non-attorney members:
“Since 1984, 94 percent of all applicants were agreed upon without a vote by the chief [justice],” she told the committee on Friday.
That number translated to just 68 times the chief justice had to split a tie — out of 1,136 votes. The amount of times the split went down evenly, between the attorney members and non-attorney members was only 15, or 1.3 percent. Five of those splits did occur within the last four years. However, Meade asserted that this was more than likely because the individuals were not qualified for the positions they were being considered to fill.
“With such a small number,” Meade said, explaining the council’s objection to the proposal, “it’s hard to see that this is something that needs to be addressed with something so dramatic as a constitutional amendment.”
At the heart of the matter is not Kelly’s objection to the Judicial Council. It’s an objection to abortion, and to a court that keeps upholding women’s reproductive rights.
Kelly is expanding the legislature and governor’s power over the last check and balance to the GOP left in state government. He’s trying to create an ideological imbalance in order to tip the scales in his favor. The overtly political tactic, generally and rightfully abhorred by conservatives in particular, is Kelly’s prescription to get around the rule of law.
To Kelly, the ends justify the means, so long as those ends render the courts subordinate to the whims of whichever party holds the majority. Kelly appears rather confident that will always be the GOP. Confidence is a tricky thing.
Taking such a Machiavellian approach could be devastating for the future of the state — irrespective of the team colors Kelly is so fond of. Absolute power seems to be corrupting absolutely.