Delegation dysfunction: Fight between Sullivan and Murkowski over federal judges damages Alaska
It’s time for Sens. Lisa Murkowski and Dan Sullivan to be candid with Alaskans about how their flawed political process helped elevate Josh Kindred to a lifetime seat on the federal bench.
They now admit he was the wrong man for the job. They don’t admit that their secrecy and lack of transparency is part of the problem.
President Trump appointed Kindred on November 21, 2019. The Senate confirmed him 54-41 on February 12, 2020. Kindred resigned under pressure this week for misconduct.
Let’s start by looking at the so-called “bar poll” of 2017, a survey of Alaska Bar Association members conducted at the request of Murkowski and Sullivan to gather the views of the legal profession on judicial candidates.
The poll asked lawyers about their opinions of Kindred and the 19 others who had applied to fill the position left vacant by the retirement of Judge Ralph Beistline.
Polling Alaska lawyers is an essential element in developing an informed opinion.
The results of the poll are never the sole determinant in deciding who to support, but the results should always be part of the picture.
This is like asking doctors for their opinions about other people in the medical field. You don’t choose Dr. X simply on the say-so of Dr. Y, but the advice may be exactly what you need.
Even though the bar poll is advisory, the full results were withheld from the public at the request of Sullivan and Murkowski. The truncated results released to the public were misleading at best and deceptive at worst.
It’s not clear why the full poll was deemed objectionable, but it’s a good guess that Sullivan did not like the results of the bar poll.
Of the other 69 percent we don’t know how many never heard of Katchen, considered him merely “qualified” or checked “don’t know.”
To make matters worse, the percentages did not come with raw numbers attached to them.
In total, 540 members of the bar association replied to the poll, but not all of them offered an opinion on each of the 20 candidates. Did 50 lawyers give an opinion about Katchen or 500?
Without that information, the poll information released to the public was almost useless.
Murkowski’s office contacted the bar association in May 2017 to say the senators only wanted to release the “extremely qualified” and “well qualified” percentages. Nothing else.
(Later that year the bar association adopted a policy that in the future it would release complete poll results of bar members. The full 2023 bar poll on choosing another judge was released.)
Six years ago Katchen did not receive a “qualified” rating from the American Bar Association by the time he announced that he was withdrawing his name from the confirmation process.
Katchen was one of five judge candidates jointly submitted to Trump by Murkowski and Sullivan, a sign that the senators disagreed. As reporter Liz Ruskin wrote on August 27, 2018, “Murkowski did not issue a statement supporting Katchen.”
Following Katchen’s withdrawal, the search began again, leading to Kindred’s nomination by Trump in July 2019. Like Katchen, Kindred had never been a judge and was young.
Kindred told an interviewer in 2021 that he had a conversation with Sullivan in May 2019 about judicial philosophy, followed by an interview with Sullivan’s office and a call from the Trump administration that “this is happening.”
Kindred ranked lower on the 2017 bar poll than Katchen, according to the truncated results.
The only applicants for the job who scored lower than Kindred on the bar poll were four lawyers with negligible support.
Six percent said Kindred was “extremely qualified," while nine percent said he was “well qualified.” We don’t know how many lawyers said he was “qualified,” checked “don’t know” or refused to respond at all.
All of that critical information was withheld. Here is what was released.
How did someone with such little support among Alaska lawyers rank so high with Sullivan? We don’t know.
We do know that Sullivan claimed he didn’t use the 2017 bar poll information in picking Katchen or Kindred, which is a way of saying that the low rating was irrelevant.
“No, I haven’t looked at the bar poll,” Sullivan said in October 2019, Liz Ruskin reported on December 2, 2019.
We are supposed to believe that Sullivan was unaware of the results of the bar poll that he and Murkowski got the Alaska Bar Association to keep under wraps.
I can’t imagine anyone believes that.
“Murkowski insists she did consider the bar poll. After Katchen withdrew his name in 2018, other Alaskans contacted her to put their names forward. Murkowski said she limited her recommendations to those the bar association rated,” Ruskin wrote nearly five years ago.
“I’m not going to take someone and move them to the White House unless they’ve gone through our process,” Murkowski told her.
“As for choosing the 16th-rated candidate, Murkowski admitted Kindred was not the senators’ first choice, or their second. The White House, she said, rejected several rounds of recommendations,” Ruskin wrote.
“I don’t think I’m divulging any great secrets: This administration has made it very clear they are looking for younger men and women to serve on the bench,” Murkowski said in 2019 of the Trump judicial philosophy.
This is as close as Murkowski may ever get to saying that Kindred was chosen from the lower reaches of the bar poll ranking to get Trump’s approval. Kindred was 41.
It was Trump who bragged that by appointing young lawyers to lifetime jobs he could influence the course of this country for decades. He placed life expectancy and politics above all else, including the wisdom gained by experience.
I suspect that one reason for Kindred’s low ranking was that most Alaska lawyers had never heard of him, which is why even he thought he would never get the job.
The Kindred mess has put the Sullivan/Murkowski split on picking judges in a new light.
Sullivan has now dropped the “I haven’t looked at the bar poll” line.
In an interview with the Anchorage Daily News this week, Sullivan said Katchen, a former employee of Sullivan’s when both worked in the Parnell administration, was his first choice.
Sullivan used the interview to promote his hand-picked judicial selection committee, led by former Gov. Sean Parnell and former Lt. Gov. Loren Leman, who can be counted on to give Sullivan the candidates that Sullivan finds acceptable.
Sullivan said “Kindred’s resignation showed why the bar association’s vetting could potentially be insufficient with a poll of attorneys, an interview and nominees submitting their resumes,” the Daily News reported.
“I think this is an example of why we actually need a much better, thorough, detailed process of due diligence,” Sullivan said.
I think this is an example of why we need due diligence and transparency from Alaska’s senators, who have relied on a tradition of secrecy.
The Sullivan approach, with his hand-picked committee, invites more backroom dealing.
The Murkowski approach, which at least allows for dissemination of the opinions of the Alaska legal community, is superior, though it does not go far enough to include the voices of the public and statewide discussion.
Sullivan and Murkowski should have listened to Alaska lawyers who found Kindred one of the least qualified of the 20 applicants for the job. The senators should have explained to Alaskans why he was their third or fourth choice.
With two judge positions now vacant, Murkowski and Sullivan have submitted separate candidates to the White House. They should reveal the names of those candidates so the public will have a better understanding of the delegation dysfunction, which is damaging justice in Alaska.
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This was the only information allowed to be released in 2017 by Alaska’s U.S. senators on the Alaska Bar Association poll that Sens. Lisa Murkowski and Dan Sullivan requested. The chart did not say how many lawyers responded to each question and did not include the percentages of those who said the candidates were “qualified” or “don’t know.” The lack of that information makes the rankings suspect.