Don’t Let the Theocrats Win

Alaska Supreme Court, 2020

In Alaska, the theocrats, busybodies and Christianists are trying to oust judges they don’t like, and even to change the the judicial selection process. Alaskans should not let it happen.

Alaska’s judicial selection process is a national model for success. It gets Alaskans smart, qualified, honest and hard-working judges. They don’t have any particular political agenda or religious angle they bring to their work, which is ideal. Impartiality is one of the most important things you should look for in a judge.

Alaska’s judicial selection process is administered by the Alaska Judicial Council: three lawyers, selected by the Alaska Bar Association, and three laypersons, selected by the Governor and confirmed by the state legislature. The Chief Justice of the Alaska Supreme Court, selected by the five member state supreme court, presides, and votes only in the event of a tie. The Judicial Council selects at least two candidates from among the applicants that have applied. Those names are sent to the Governor, who picks the judge from among those nominated.

Every few years – the interval depends on whether it is a district, superior or appellate judge – the judges stand for a nonpartisan retention election. The Judicial Council goes through a review process and makes recommendations to the voters whether or not to retain a judge/justice.

The process has worked very well. Alaska’s judges have been uniformly well-qualified, diligent and as impartial as human frailty allows. WC has appeared in front of many, many of the judges selected by the process and has no complaints. WC’s clients, ranging from indigent criminals to international banks, have had no complaints. There’s a separate process for discipling or removing bad judges, beyond voter review; it has rarely been used.

It’s not broken. It doesn’t need fixing.

That hasn’t stopped single issue advocates from attacking the judiciary. In particular, the issue of reproductive choice has incited a segment of the electorate. Alaska has a constitutional right to privacy – an amendment adopted by the voters in 1972. That voter-approved right to privacy is the linchpin for women’s choice, as is Alaska’s expansive interprettion of equal protection.

Justice Susan Carney, a divinity student as an undergraduate, is the current target of those who want to tell a woman what she can and can’t do with her body. WC has known Justice Carney since she was a law clerk for the late Justice Jay Rabinowitz. She has had a distinguished career as a lawyer, as an Alaskan and as a civil servant. She has a superb work ethic, a wide understanding of the law and long experience dealing with those impacted by the law. The proof of Justice Carney’s integrity is that she is a Catholic but still respects Alaska’s rule of law and has upheld a woman’s right to choose. Still, she authored a pro-choice opinion last year, and it has the theocrats and their fellow travelers in a tizzy. Again.

Since her appointment in 2016, Justice Carney has participated in hundreds of published decisions. The theocrats and Christianists found only three to criticize. The first is Alaska’s sex offender list. In effect, as written Alaska’s sex offender registration law is a lifetime sentence to a scarlet letter. If an 18 year old commits a sex crime, he goes on the list; even in his 80s he still must be registered. It’s irrational. Irrational statutes are pitched out by the courts; it’s their job; it’s a check and balance on the legislative and executive branch. But rather than throw that statute out, the Alaska Supreme Court created a process by which an offender could petition to have his name removed. If the judge found there was no risk, the offender could be exempted. Justice Carney didn’t author the opinion; she voted in the majority. The decision saved an otherwise likely unconstitutional statute. But the busybodies, stoking voter fears, have tried to make the decision “extremist.”

The second Justice Carney decision that has the busybodies’ panties in a wad involves the gnarly issue of Medicaid and abortion. It was the fourth time the issue has come before the court. Justice Carney’s decision wasn’t issued in a vacuum. In a challenge to the requirement of medical necessity, she wrote,

This standard imposes different requirements for Medicaid funding eligibility upon women who choose to have abortions than it does upon women who choose to carry their pregnancies to term. The statute’s and the regulation’s facially different treatment of pregnant women based upon their exercise of reproductive choice requires us to apply strict scrutiny, and the proposed justifications for the funding restrictions do not withstand such exacting examination. We therefore conclude that the statute and the regulation violate the Alaska Constitution’s guarantee of equal protection.

State v. Planned Parenthood of the Great Northwest
Supreme Court of Alaska, February 15, 2019 436 P.3d 984

The abortion monomaniacs can’t see that equal protection benefits them, and that creating dubious exceptions jeopardizes that fundamental constitutional right. Protecting equal protection is the exact opposite of “extreme.” So, instead of seeking a constitutional amendment simply banning abortion – not likely to be popular in individualistic Alaska – they attack Justice Carney.

The third reason the busybodies offer for voting “No” on Justice Carney is the claim that she “took away your PFD,” your Permanent Fund Dividend. Non-Alaskans should recall that the fiercely independent Alaskans get a check from the government annually. In the face of massive budget shortfalls and legislative inaction, former Governor Bill Walker used his line item veto in 2016 to reduce the PFD by 50%. An outraged consortium of Alaskans sued, challenging the authority of the Governor to veto part of their free money. The Alaska Supreme Court unanimously held that it was perfectly legal for the Governor to use his constitutional line item veto on the PFD. Rather than examine the court’s unanimous (and entirely correct) reasoning, the busybodies tried to tie Justice Carney to the third rail of Alaska politics.

And that’s all they’ve got. They don’t accuse her of being corrupt, or being partial. They don’t cite any defective reasoning, or violation of precedent. Out of those hundreds of decisions, they’ve got nothing. They certainly don’t offer a reason to vote her off the court.

They tried the same stunt with Justice Dana Fabe. But this time they don’t stop with Justice Carney. This time, the busybodies, Christianists and their fellow travelers are even more ambitious: they want to throw out the Alaska judicial selection process and substitute something else. But here’s the thing: all of the other judicial selection methods are worse.

Some folks don’t vote all the way down the ballot, leaving the checkboxes blank for the judges. You can’t do that this time; there’s too much at stake. Follow the recommendations of the Alaska Judicial Council: vote to retain all Alaska judges and justices standing for retention election.

Don’t let the theocrats win.


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