The Judiciary Reacts

Representative John Cowdery's Comments to the House Judiciary Committee

March 3, 1998

Honorable Joe Green, Chairman
House Judiciary Committee
118 State Capitol Building
Juneau, Alaska 99801

Dear Mr. Chairman and Members of the House Judiciary Committee:

I would appreciate your vote to move and pass HJR 47 from committee. The issues involved in this Resolution are apparent to all. In fact, if you will review my testimony, attached, you will see that I anticipated the primary arguments against the bill and effectively answered them.

All testimony from the public was in favor of HJR 47, except for two organized lawyer/judge groups and former Senator Vic Fischer who was voted out of office in favor of a more conservative senator. Those who spoke or left written statements supporting HJR 47 include former Lieutenant Governor and Constitutional Convention Delegate, Jack Coghill, former Anchorage Mayor Tom Fink, Attorneys Ken Jacobus, Rob Reiman and Wayne Anthony Ross, Mr. Jerald Des Jarlais, Ms. Sue Fischetti, Mr. Ross Dunfee and many others who came to the LIO’s but departed before we could get to them.

HJR 47 is so popular with the public that I can fill many hours of hearings with favorable testimony. But it would be redundant because the issues are few and fundamental. I would like to recap them for your consideration.

First, I need to address the extraordinary testimony of Chief JusticeWarren Matthews. Chief Justice Matthews’ personal participation was intended to convey the considerable influence of his high office against HJR 47. He wanted to make a statement and he did it twice. He made his statement at the committee hearing and again in the Joint Session on the State of the Judiciary. His testimony lacked in both form and substance. I will elaborate.

As to form, Chief Justice Matthews had the opportunity to apprise himself in advance of the contents of the legislation, the sponsor statement and the supporting testimony which preceded his. Yet, he chose to not engage the arguments presented. Instead he offered parallel arguments that did not intersect with information already on the record.

As legislators, we publish our sponsor statements. We lay bare our reasoning and motivation in public testimony. We endure the slings and arrows of debate, sometimes contentious debate, to arrive at the truth and value of the premises contained in our legislation. We do this as a necessary part of the democratic process. We are not especially trained in the fine points of rhetoric and debate. But we are driven by our public responsibility to test ourselves, our thoughts and our principles in a crucible of diverse and public argument.

The judiciary, unlike the legislature, is especially trained in the art of rhetoric, argumentation and debate. There are few who can hold their own against the Judiciary’s superior education, training and acumen. And, one must suppose, too, that members of the Supreme Court are the supreme representatives of their craft. Having regard for the safety of my own ego, I do not relish being pitted against someone who is so much better trained than I. Yet, legislative accountability demands that I answer all arguments on the issues that I adopt. The Chief Justice is not so obligated. He is free to pick and choose which issues to engage, which to ignore, which venues to participate in and which ones to ignore; all in all a royalist approach to public responsibility.

Chief Justice Matthews advanced no argument that was not, or could not be, advanced by other officials of the Bar Association, Judicial Council, his lobbyist or administrative staff. Why, then, was it necessary for him to take the extraordinary step to personally testify against HJR 47? If he brought no unique information to the debate, then his only purpose could have been to see what legislative mettle might wither under the influence of his high office. It was a political stroke through and through! For all his argument against politicizing the process, it seems he is quite willing to be political on his own terms.

Further, as to error of form, whenever a member of the Judiciary pre-judges a legislative issue, the integrity of the judicial forum is compromised if the issue is thereafter litigated. It is simply bad judgement for the judiciary to directly advocate in the legislative process. The Judicial Council’s Executive Director testified. The Chief Justice is Chairman of the Judicial Council. There is a variety of ways for the Judiciary to get their arguments on record without compromising the public process they administer.

As to substance, Chief Justice Matthews presented three lines of argument against HJR 47. First, he contends that legislative confirmation of judges will politicize the selection process. As evidence, he offered the parallel of the federal system’s judicial appointments. He says whenever the President and the U.S. Senate are controlled by different political parties there is always a controversial vote that goes down party lines. He pointed to the Clement Haynesworth, Robert Bork and Clarence Thomas nominations as examples. He says a judge who is championed by one political party and opposed by the other could be suspected of being partisan in cases with political issues at stake.

Two key flaws exist in his "politicization" argument. First, he assumes politics is necessarily bad. Second, he totally mischaracterizes the federal judicial confirmation system.

This argument, that legislative confirmation equates to politicization of the judicial selection process, is true. Black’s Law Dictionary helps us define our terms:

"Political. Pertaining or relating to the policy or the administration of government, state or national. Pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; relating to the management of affairs of state, as political theories; of or pertaining to exercise of rights and privileges or the influence by which individuals of a state seek to determine or control its public policy; having to do with organization or action of individuals, parties, or interests that seek to control appointment or action of those who manage affairs of a state."

"Politics: The science of government; the art or practice of administering public affairs."

If "politicization" means exposing judicial candidates to the rough and tumble that sometimes results from a public process, then it is of course true. It is true and it is GOOD!

There is nothing inherently evil or untoward in politics. Politics, like justice, is as good as the people who administer it. Politics is simply a shorthand word for going about the public business. Surely, it is easier to be aloof from the public, as is the judiciary. They are the closest thing to royalty we have in our society.

However, the Chief Justice must have a different meaning in mind for the word ‘politics’. His meaning has a degrading meaning, suggesting something sinister about the political process. Any suggestion that public involvement inherent in the legislative process is somehow debasing, is too royalist a view for our democratic society. It is further testimony that the Judiciary is out of touch with the people of Alaska. Public confirmation hearings would be an in-touch experience for judicial nominees.

Apparently, CJM only recognizes ‘politics’ as occurring in the legislative branch. He admits to no political considerations being played out in the executive branch during the appointment process. Does not the White House look for judicial candidates who are philosophically compatible and supportive of its major precepts? Aren’t there special interest groups, politicians and people of influence who advocate to the White House for or against certain candidates? The point here is that politics does indeed play a prominent role in the executive branch’s appointment process, and it largely excludes the public. Public involvement doesn’t occur until an appointment becomes a nomination and is sent to the legislative branch, i.e., the U.S. Senate. Public involvement is the key difference between the executive and legislative branch’s appointment processes. This is the step missing in Alaska’s current system that HJR 47 will remedy.

The Judiciary and the Alaska Bar Association have their own, rich history in judiciary politics. A former Chief Justice tied up Bar Association funds. In retribution, the Bar Association actively worked to defeat the 1964 Supreme Court Justice Arend, who was up for retention election. (See Bar Rag..date)

Chief Justice Matthews advanced the Haynesworth, Bork and Thomas appointments as examples of politicization of the federal process that we should avoid at the state level. He selected these three appointments from a span of about 25 years. In fact, they are not representative of the federal appointment process. During the past 25 years, they are the nominations which commanded the most news coverage. After Clarence Thomas’s appointment, another Justice was appointed to the U.S. Supreme Court. Most people can’t remember his name because no controversy attended his confirmation. Haynesworth, Bork and Thomas are not typical of the federal process. There are about 800 federal judgeships. About 68, on average, are politically confirmed each year, routinely and without fanfare

Contrary to Chief Justice Matthews’ argument about ‘politicization,’ politics smooths out the confirmation process. By no written rule, but only as a matter of political expediency, the Senate and the White House have an informal arrangement whereby the senior U.S. Senator from each state concurs in the federal judicial nominees from their respective states. This process is a political compromise that results in the overwhelming preponderance of federal nominees to be confirmed without controversy. Politics, it is shown, facilitates the appointment process.

Further analogizing the federal system with HJR 47, CJM said that when the executive and legislative branches are controlled by different parties, the vote always tends to go down party lines. Again, the votes on Haynesworth, Bork and Thomas are simply not indicative of the pattern of congressional approval. In fact, party line votes are rare in the appointment process, both at the federal and state level. One need only review the President’s and the Governor’s cabinet and other political appointments submitted for legislative confirmation. The overwhelming preponderance of the their appointees are confirmed without regard to party considerations. Legislative confirmation is not the bugaboo that CJM claims it is.

In answer to a query from a member of the committee, CJM said,

"I don’t accept the premise that there is partisanship inherent in the appointment of Alaskan judges."

He offered that his own appointment by Governor Hammond was an example of a cross-party, therefore non-partisan, appointment. The Chief Justice presumes that party affiliation is the only basis for partisanship. In fact, we know a variety of bases for partisanship including conservative vs. liberal, urban vs. rural, development vs. no-growth, pro-governor vs. anti-governor, etc. CJM’s appointment by Governor Hammond would have been much less likely if his client list included aggressive development interests instead of the Sierra Club. His main benefactor for the appointment was the Governor’s Administrative Assistant who also was his former law partner. Some would say he had ‘political’ connections. CJM would have us believe that politics is something that happens in the legislature’s back yard, never in the governor’s or the judiciary’s.

If appearance of partisanship is an issue that truly concerns CJM then perhaps he should resign and revisit the appointment process without political support. As one member of the Judiciary Committee said, "politics is inherent in the process." To deny this fact is extremely naive. To contend that it is base, is an insult to the body-politic in general and to the legislature in particular.

As for his concern that a judge could appear to be obligated to the legislative party that champions his confirmation, why is it not a concern to him that a judge could appear to be obligated to a governor who appoints him. Uncontested partisanship should not be confused with non-politicization.

The second line of argument employed by CJM against HJR 47, was that it could result in confirmation delays and bottleneck the courts’ work flow. He noted that he was appointed in the month of May. If he could not take office until after legislative confirmation seven months later, it would prolong the vacancy and impede the court’s productivity.

This argument is somewhat disingenuous because it ignores the adaptability of people and organizations. With legislative confirmation in place, most resignations and retirements will simply schedule themselves around the legislative calendar. As a matter of administrative efficiency the Court System could require a one-year notice for judgeships that require confirmation. It can be argued that unforeseen vacancies due to accidents or death could still present a problem. The record shows that these occurrences are rare. And, inasmuch as the Judicial Council’s process takes from three to six months, the risk of being out of sync with the legislature is statistically insignificant.

Also, although CJM expressed reluctance to use temporary fill-in appointments for the high court, the Constitution gives him the authority to do so. Alaska has a repository of retired judges who can perform this temporary function. The Chief Justice need only exercise the power given to him in the law.

Finally, Chief Justice Matthews third argument against HJR 47 was that it would "degrade" the "merit system" now in place. Nothing could be further from the truth. HJR 47 maintains the current system in total. The Judicial Council and the Bar Association will still go through the same polling and grading processes. They will still interact with the governor in the same way they do now. When all their work is done, and after the governor makes his decision, HJR 47 simply gives the legislature and public a role to play in the appointment process.

However, CJM warned that if the legislature rejected the top two nominees, working down the list to other candidates would result in inferior quality of judges. One can only note that this argument is built on an inflated opinion of the precision and objectivity of the selection process. In all probability, a different set of raters would yield a different set of results. Many attorneys refrain from submitting their applications for judgeships because they believe the selection panel as biased against them.

In summary, HJR 47 retains the existing merit selection system. It adds public participation via the legislative forum. It requires legislative approval of attorney members of the Judicial Council and judges for the Court of Appeals and the Supreme Court. Confirmation will result in appointees who are acceptable to a broader segment of the public than only the narrow constituency of the appointing authority. In effect, legislative confirmation adds a "whole man" review of the nominee’s suitability for appointment. This is a proposition that we can recommend to the General Election ballot for final determination by the voters of Alaska.

Yours truly,

< Signature >

John J. Cowdery
Representative