Yesterday, the legislature refused Governor Walker’s call to joint session to act upon his appointment of the attorney general, among other appointees. The attorney general – Jahna Lindemuth – is one of his most controversial picks, and many legislators are uncertain that she should be confirmed. Some contend she needs more vetting before the legislature should act to confirm.
In the following open letter, Representative David Eastman confronted the Governor’s nominee, demanding that she clarify a number of troubling statements she made to the legislature during her first appearance there:
Dear Acting Attorney General Lindemuth,
Yesterday, after a lengthy confirmation process, Associate Justice Neil Gorsuch was sworn in as a Supreme Court Justice. The legislative confirmation process is a fundamental piece of our constitutional framework. It is through this process that the qualities, loyalties and competence of nominees are examined through a public process.
The Delegates to Alaska’s Constitutional Convention provided that Alaska’s Attorney General would be appointed by, and serve at the pleasure of, the governor. However, they also wisely determined that all such appointments would be subject to confirmation of the entire legislature, providing a formal check against any governor who would appoint to office an individual who was in any way unfit for that office. They also provided that, before entering office, the attorney general would take a solemn oath, declaring her loyalty to the Constitution of the State of Alaska over and above any felt loyalty to the individual who had appointed her to office.
On February 22nd, you appeared before us in the House Judiciary Committee for your first hearing in the legislative confirmation process. During that hearing the following exchanges took place (paraphrased in pertinent part below):
Question: How do you see your role as attorney general?
Answer: When it comes down to it, the buck stops here, as the top lawyer for the state, the attorney general is responsible for the legal decisions made (for example, taking a course of action, initiating litigation, or settling a big case).
Question: If one of the branches of government, the judiciary, is overstepping its bounds and is usurping the legislature’s authority by legislating from the bench, how do you see your role as an attorney general in that type of situation?
Answer: The Alaska Supreme Court is the constitutional interpreter of Alaska law as the final arbiter, and the department has to defer to it.
Question: The Alaska Supreme Court ruled that a fishery cannot be managed from the ballot box. Are you comfortable defending that position? Do you feel strong enough to engage in the Alaska Supreme Court’s decision?
Answer: If the Alaska Supreme Court has spoken on an issue of Alaska law, the Department of Law defers to the Alaska Supreme Court on that particular issue.
Question: If the governor were to violate state law, as attorney general, how would you approach the tension between your knowledge and understanding of what the law is, and a situation where the governor was violating the law?
Answer: Soft advice behind the scene is the best way to keep the administration on task and within the rule of law. I recently met an elected attorney general who was within the first two years of his tenure and he has already sued his governor four times. That is not a functional system, and possibly, that’s not the best way to address concerns.
Question: How would you deal with a situation where you think you have a winnable case for the people of Alaska, and the governor thinks differently? To whom is your obligation?
Answer: The governor is just one of my clients, although the governor is the top elected official and as such he does make the final policy call when policy calls are to be made.
At the close of your confirmation hearing in the house, I announced that I would be objecting to your confirmation at that time, but that it was my hope that you would take the next few weeks to consider the responses of members of the committee to the answers you provided, and provide additional information that might lead me to vote in favor of your confirmation.
It has now been seven weeks since you came before us for confirmation, and I have not received any further information with regard to the various concerns that were identified during your first confirmation hearing. As it stands today, the following concerns prevent me from voting to confirm you as Alaska’s Attorney General:
1) I am concerned that you are unable to distinguish your loyalty to the governor as a member of his cabinet, from your responsibilities to the constitution and to the public.
2) I am concerned that you may fail to provide effective legal representation to your client, the people of Alaska, when presented with a winnable case that comes in conflict with a governor’s political agenda.
3) I am concerned that you will be unable to defend the Constitution of the State of Alaska as attorney general.
As the chief law enforcement official in Alaska, and the legal advisor to the governor, our state relies heavily upon your ability and commitment, in keeping with your oath of office, to “support and defend” the Constitution of the State of Alaska. Your statutory duty to defend the constitution requires knowledge of the constitution and the ability to discriminate between interpretations of the constitution that are accurate and interpretations that are inaccurate. The possession of unquestioned loyalty to any interpretation promulgated by the Alaska Supreme Court is not an asset to a public official who may one day be required to provide legal advice to the governor as to how he should respond to an unconstitutional decision on the part of the court, especially at a time when courts across the country are expressing a willingness to entertain questions formerly reserved to the political branches. As attorney general, the decision to simply defer to the opinions of the court in all cases whatsoever, is at best a very tenuous position.
Youth in Alaska’s schools can readily tell you of decisions by the U.S. Supreme Court that deprived Americans of their rights under the Constitution. Dred Scott, Korematsu, Plessy and others are widely cited today as cases in which the Supreme Court got it wrong. Certainly our Alaska Supreme Court is no less fallible. Bess v. Ulmer represents a textbook case of an Alaska court overstepping its bounds and creating out of whole cloth a new, and hitherto unimagined, power of the court to veto constitutional amendments. Such innovations inevitably come at the expense of the other branches of government and ultimately at the expense of the people of Alaska. Alaskans cannot afford to have an attorney general today who will defer to continued innovations on the part of Alaska’s Supreme Court. For these reasons, I am unable to support your confirmation as Attorney General of the State of Alaska at this time.
Further, because of observations that I and other legislators have made throughout this confirmation process, I am currently working with colleagues to draft legislation making Attorney General for the State of Alaska an elective office, thereby ensuring that future attorneys general for the State of Alaska will be sufficiently independent to fight for Alaska’s interests and to be accountable to the public.