off the record
a VIP policy letter
from
Senator Kim Elton
Room 115, State Capitol, Juneau, AK 99801 * 465-4947 Phone * 465-2108 FAX

Edition # 182 Please feel free to forward September 9, 2004

	Capitol Undercurrents				Judicial independence Guv chafes under constitutional barrier
	Lindauer redux—The New York Times Sunday Magazine for the 29th of last month had a long story about Susan Lindauer, the daughter of former UAA chancellor and 1998 GOP gubernatorial candidate John Lindauer. Daughter Susan was the subject of a feature-length article subtitled: "One woman seemed to believe she could alter the course of world events by opening a secret back channel between the U.S. government and Saddam Hussein's regime. The white House wasn't interested. The FBI was." In the article, Susan's brother recalled a family incident to make his point that "a strain of playacting and deception runs in his family." He told of "watching his father, then 38, grow a mustache and dye his hair gray before being interviewed for the job of chancellor of the University of Alaska Anchorage." Googling monkeys—Type in 'Murkowski, nepotism' when doing a Google search on the internet and you get 2,230 hits. That's a lot more, reportedly, than the Gov. Murkowski list of "greatest hits" his cabinet and staff are putting together as his putative list of accomplishments in the first two years of his administration. Kind of gets to the issue of whether you're more noted for your screwups or your self-described accomplishments. Juneau's legislative delegation chipped in some baked goods for the annual girl scout dessert auction September 3. As a reward we all got to sing with some of the scouts—they sounded better than we did. Phone: (907) 465-4947 Fax: (907) 465-2108 Mail: Sen. Elton, State Capitol Juneau, AK 99801 Email: Senator.Kim.Elton Jesse.Kiehl Paula.Cadiente Web: http://elton.akdemocrats.org				What part of 'shall' doesn't the governor understand? The whole of Article IV, Sec. 5, the 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 unpaid Alaskans serving on 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. Last week, the governor's chief of staff argued that the judicial council send up all the names of all qualified applicants instead of two or more names as instructed by the constitution. (The request for all names of qualified applicants was accompanied by the suggestion that the legislature would otherwise intervene in the process, though that suggestion presumes a lapdog legislature-hmmmm-and also presumes the legislature will ignore the constitution-a much bigger hmmmm.) Given the contra-constitutional notion from the guv's office that the judicial council must do what the governor wants instead of the governor selecting from candidates the council believes are most qualified, 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. Record cleared. The constitutional language and constitutional intent makes judicial cronyism difficult for the governor. Drafters tilted the process toward merit and away from the political amigos. 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." The governor's argument that he be allowed to pick from all qualified candidates, not just those deemed most qualified, not only contravenes the language and intent of the state's constitution but smacks of neo-imperialism. He may want to "pick and pluck" judges with little restraint, 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 picking and then unpicking of Jim Elkins to the state senate right after Mr. Elkins criticized the governor's longevity bonus decision?), but the constitutional framers deep-sixed that approach for the judges of the superior court and justices of the supreme court. It is especially troublesome that some legislators agree with the governor and not the pioneers who wrote the constitution. One member of the House majority told the judicial council, before they selected the nominees from the pool of applicants, they should forward Scott Nordstrand's name and if they didn't the legislature might want to do something about it. Another member of the Senate majority voiced concern that the council was apparently doing what the constitutional authors wanted the council to do. There is a fix for this dilemma. These legislators and the governor can propose 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, if they get a two-thirds majority in each body of the legislature, the amendment goes to Alaska's voters. Only if both these high hurdles are cleared can those legislators and the governor then hold out their pinky rings and make the non-partisan judicial council kiss them.

If you would like to receive this newsletter or if you want to be removed from the mailing list, please contact Paula Cadiente, staff, at paula.cadiente@legis.state.ak.us and have her add or remove your name. View all the back copies of Off the Record at http://elton.akdemocrats.org