Thursday, October 28, 2010

Dana Fabe - Vote Yes!

Seeing many sides of any issue makes it hard to take a really strong stand.  You know that there are also good arguments against your position or that the situation isn't black and white.  A person may have some flaw, but there are other parts to him that are worthy.   A policy may solve a number of problems, but it also raises new ones.

Once in a while there comes an issue where there is no other legitimate side.  Where there is only one right and the other is simply wrong.  Voting yes to retain Dana Fabe on the Alaska Supreme Court is one of them. 

I first met Dana Fabe when a student in a class on administrative law, who worked for the court system, was curious about how judges got evaluated.  This was a very smart student who had been raised in a fundamentalist family.  He'd made some accommodations with the world - while he personally felt homosexuality was a sin, as a government employee, he felt he did not have the right to treat gays differently from anyone else. 

So as a class project he dove deep into this issue.  What he discovered, and presented to class, was the complex and thorough system by which judges are evaluated. 
The Judicial Council is directed by law to evaluate the performance of judges due to appear on the ballot. The Council collects evaluations from attorneys, peace and probation officers, jurors, social workers, public hearings, and information from many other sources. The Council then recommends to the public whether each judge should be retained. The recommendations, as well as information about the evaluation of each judge, are sent to each voter in the Official Election Pamphlet.  [from Alaska Judicial Council]
The other students got into this project and Dana Fabe, who then I think was a court administrator or perhaps a superior court judge, was invited to class.  For a couple of hours she talked and answered students' questions.  There are times when you just know - this person is both highly competent and public spirited.  This was a long time ago and I don't remember the details of what she said.  Only that I was left with complete confidence in her abilities. 

What I learned is that Alaska has one of the best systems for selecting judges - a system that favors merit while keeping the political aspects of evaluation judges to a minimum.  And we have a comparatively outstanding set of judges in the state.

Later, when I got a small grant to set up a group of five outstanding women administrators to create a process to pass on their wisdom to public administration students, Dana Fabe was one of the five.   Everyone I asked brought up her name.

Then they set up a class for students where we had panel discussions each week made up of different women administrators talking on different subjects.  There were even a few men that were on some of the panels.  So this was a second chance to work with Dana Fabe and see how remarkable she was. 

To get on the Supreme Court, you submit your name and the paperwork.  Then all the surveys go out to the various groups listed above.  And those that get back scores above a set level are then sent on to the Governor who then selects one who then must be confirmed by the legislature.  That was how Dana Fabe got selected. 

Then every election that includes retention of judges, all the surveying goes on again and the Judicial Council makes a recommendation.  It's in your voter pamphlet for each candidate. 

So, why am I writing all this?  If Judge Fabe is so good, what's the big deal?

Well, this year, a last minute campaign has been made to get people to vote no for Judge Fabe's retention.  Alex Brynner, a retired Supreme Court judge began an Anchorage Daily News editorial on the campaign this way:
Barely two weeks before next Tuesday's election, a special interest group with a nationwide agenda and big pots of Outside funding launched an attack against Alaska Supreme Court Justice Dana Fabe, who is on the ballot for retention. The last-minute attack is timed to prevent any response: As the challengers know, rules of ethics prevent judges from campaigning for retention absent "active opposition." Even then, they can't answer directly but must organize a committee to respond.  [Read more:]

Jim Minnery, the head of the Alaska Family Council wrote an editorial supporting NONretention.  The Alaska Family Council's values and mission are to promote through public policy their fundamentalist Christian views on
Christians and Politics
Defense of Marriage
Education & School Choice
Judicial Activism
Pornography & Obscenity
Religious Liberty
Sanctity of Life

The Alaskapride blog, which also favors NON-retention has a set of links to white supremacist websites under the title  "Alternative Media."

OK, I've suggested there aren't two sides to this issue.  Well, yes, there are.  The right side and the wrong side.  But, you might argue, it's just a matter of differing values.  Yes and no. 

Judges are supposed to support one value:  The Rule of Law.  You aren't supposed to have pro-abortion or anti-abortion judges (much of the opposition rests on this issue).  They aren't supposed to go onto the bench with a list of policies they want to forward.  There is only one policy judges should be promoting - the rule of law.  You are just supposed to have pro-law judges, judges who look at the law and determine how a particular case should be decided based on how the facts of the case square with the law, whether it's a statue or the Constitution. 

Yes, there are times when an individual judge's personal life experiences affect a decision. For good judges, that should only happen when the law is unclear and/or there may be contradictory laws.  Only then, should a judge's personal values legitimately have some influence on the decision. 

Justice Fabe introduced in State House
As Wickersham's Conscience points out - Justice Fabe didn't make the kind of decisions that she is being accused of.  The non-retention campaign is twisting the facts.  Essentially, they want to oust a superb jurist who interprets the law as neutrally as it is possible to do.  Then this would give Gov. Parnell the chance to appoint a judge steeped in the same religious view of the world that Minnery and his ilk favor.  Their website says they are against activist judges, yet they favor the judges who have made the Roberts US Supreme Court  activist.  In the direction Minnery wants it to be activist. 


  1. What a shameful attempt. For some the ends always justify the means. Besmirch and distort- tools in the kit of the religious right.

    A sneaky attack that is hard to debunk -now that is some coincidence.

    The same thing happened in Texas to the courts some 20 years ago. A guy named Karl was rather instrumental in that, his funders- well they are still in the game. That effort was successful.

    This attack on the courts is widespread- and well organized. Good luck in beating this attack back. Be prepared. There will be more. Joe Miller's wife helping to select Judges in Alaska... that's a coincidence.

  2. Steve, one of the major reasons I live in the UK was the result of a Alaska SC decision in 2001 in which our on-going litigation to achieve civil rights recognition of same-sex civil marriage was denied due to lack of 'ripeness'.

    Dana Fabe was chief justice at the time of the decision that mooted our case (after Alaska's 1998 constitutional amendment barring recognition of same-sex marriage). That 2001 majority ruling reasoned that Gene and I had no legal standing as we didn't experience actual harm as gay men denied equal standing in the law: we needed to demonstrate a specific injury. Justice Bryner dissented in a strongly worded minority opinion that still rings true as a finding for the powerless. Read both at Brause v. State of Alaska, 21 P.3d 357 (Alaska, April 17, 2001).

    I now recognize that day in April when I first heard mention of this decision (while in superior court listening to oral arguments on Carter et al v State of Alaska) as the day I no longer had citizenship in my home state and country. It hurt in a way that simply cannot be understood by people who haven't experienced it. Robert Wagstaff, our attorney, saw this decision as wronging the established rules of standing in Alaska.

    Gene and I saw it as deprivation of civil rights by other means. But because of it, I just can't care about Dana Fabe's retention. (Sorry Dana, if you didn't know this before now.)

    Yet if I still lived in Alaska (I don't; I left the USA) and still voted, I would vote for her retention, but do it well-knowing the price gay and lesbian residents there paid for having her on the bench.

    I learned how very political courts can be--they can and do subscribe to mainstream sentiment as they feel the occasion--the very definition of politics. Theirs was a decision not so much rooted in Alaska's application of standing but rather a federal one. That choice made all the difference as to where I live today. Alaska is not free.

    As you said, Steve, that facts about a person are never simple. I wish Alaska well as it faces yet another insane election cycle.

  3. Jay, if I read this decision, I don't remember it. But I think the fact that a gay man was not happy about Judge Fabe's interpretation and a leader of a virulent anti-gay and anti-abortion ministry also doesn't like Judge Fabe's decisions makes my point. She makes decisions, not on predetermined personal values, but on how she sees the facts of the case in relation to the law.

    And Brynner who wrote the dissent you did like - in opposition to the majority opinion - also wrote the strong defense of Fabe cited above.

  4. Steve, attorneys we know who reviewed this decision agree that the problem with that 2001 decision was that it didn't apply Alaska precedent on legal standing--the right to bring a case--it relied on federal precedent to defeat hearing a civil rights case of merit.

    Because of this decision, it took Carter et al (a very narrow public employees benefits case) to find a limited insurance benefit to a smaller class of a larger population still denied civil rights by Alaska statute and its amended constitution.

    Please do read the decision, but I don't believe we will find accord. We share differing personal perspective.

  5. Dana Fabe is an outstanding scholar and Judge. To accuse her of being an activist or somehow voting or writing opinions in an unconstitutional manner is ridiculous.

    There are those who cannot distinguish between the Constitution and the Old Testament. They want 'justice' to consist of accusation, followed quickly by a stoning or some other barbaric execution.

    Justice Dana Fabe's critics know that if they can get her off the Supreme Court, they can then move on Justice Winfree, and then create their facist utopia right here in Alaska.

    This is what happens when they stop teaching civics, law, and critical thinking in school.


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