This editorial is an overview of a not-so-widely discussed topic, the judicial overreach of our legislative process. While it is good for the Legislative branch to have checks and balances, simply put Alaska’s Judicial branch has too much power!
As a retired legislator and resident, I am troubled by the Alaska Judiciary response whenever it feels challenged by the Legislature. A strong defense comes up whenever they detect a calling for more judicial accountability. Our Constitution supposedly “…gives the legislature wide latitude to expand and shape the [judicial] system to meet the needs of the State…” (Citizen’s Guide, 5th edition, Jan, 2021); yet, a strong ‘judicial subculture’ seems determined to prevent any tweaks. Our Constitution grants the Judiciary unprecedented power – including an exclusive lawyer association monopoly. It is a very big problem if the extra power endowed to Judiciary is eroding the people’s legislative power they should rightfully expect to have through their elected legislature.
Constitutional judiciaries were originally designed to be weak (See Federalist #78), but Alaska broke the mold and needs to watch for unintended consequences. SB14 proposes a slight, but much needed, adjustment to help ensure our laws reflect the values of Alaskans. The separate legislative and judicial roles are utterly essential to govern a free people. Legislature must not directly influence Justice and the Judiciary must not have undue influence on legislation.
The official Judiciary opposition to SB14 looks like a rigged game of ‘king on the mountain’! The repetitive over-reaction of the Judicial opposition, in itself, is suspicious and confirms the need for the bill. It may reveal jealous protection of “judicial activism”, far upstream. The proper interaction between laws and justice must be maintained for good government!
Our constitution intentionally created a monopoly for licensed attorneys that run our Judiciary.
- Any AK attorney who aspires to judgeship must be a member of, and pleasing to, the Alaska Bar Association to even be nominated.
- Every attorney in the Judiciary must be part of the 4000-member strong Bar Association.
- The Association is the sole source of attorneys advising and representing all State agencies of the Executive Branch (the entire Department of Law)!
- It is the sole source of Legislative bill drafters!
- It is the sole source of attorneys for any citizen needing representation before a judge is approved by the association.
MOST Alaska court cases are between a State paid Association prosecutor and an Association defense attorney, before an Association judge – in public buildings and with state employee support staff. The Judiciary answers to no one as they decide on accusations of excesses by state government. There are no recourses except a legislator who will invest time and staff to make a case on behalf of individuals and whose success depends entirely on rational appeals or politically engaging the entire legislature.
Anyone working in the Juneau legislature has encountered the powerful force of the judiciary at every turn of the legislative process! Every word of every bill must get through the gauntlet. Professional legal advice is essential for good legislation, but it is a very tall order for a legislator to discredit misguided activism to make laws reflect a particular bias- particularly in the drama of the 90-day budget feeding frenzy.
Attorneys often claim to be non-partisan, and there are is no Bar Association PAC, but review of individual attorney political contributions (public information) reveals undeniable left-wing advocacy. Government paid attorneys provide countless dueling “legal opinions” as testimony to shape many bills and amendments. They have even more direct involvement in the obscure creation of administrative law (regulations). Creation of every State law, regulation, and policy is heavily influenced by the Judiciary. When Judicial activism shapes law in the name of “justice” we start down a “slippery slope” toward systemic injustice and government abuse with little protection for Alaskans.
Individual attorneys are also victims of a systemic problem. A consequence is a huge chasm between the “judicial philosophy” of our Judiciary system (“judicial activism”) and the judiciary philosophy of the populace — We the People — particularly those who do not work for State government. The populace judicial philosophy favors “judicial restraint”. These terms have not been part of our “dinner table” vocabulary, but they can be quickly defined and understood.
Judicial activism is unabashedly on display in the energetic opposition to SB14. It uses a negative colloquial definition of “politics” (despicable, unprincipled, partisan…) with no acknowledgement of “politics” provoking legitimate, public, academic debate in quest of truth! Alaska Supreme Court Chief Justice Bolger lobbied against SB14 in his 2/21/2021 “State of the Judiciary” speech. He told reporters after the speech, “The process that keeps politics out of the selection process is the most important!” Another respectable friend who is the spokesperson for the Alaska Court System testified, [SB14 will] “make politics and political affiliation a key factor for seating a judge.” Check out the force of the impressive “Justice not Politics” website. A quick look will reveal a bias in stark contrast to this editorial. It is blatantly devoted to keeping judicial power.