Nearly nine hours, 25 votes, and one unsuccessful Rep. David Eastman (R-Wasilla) vote-reversal later, the joint session of the 31st Alaska State Legislature made that final gavel noise signifying adjournment and reprieve. Theatrics were abound, but despite controversial appointees, few failed to land the necessary confirmation votes standing in the way of becoming fully accredited members of the Governor Michael J. Dunleavy Administration.
This isn’t a story about who was confirmed. Those already exist and this author would do little to add to them. This is a story about why.
Minutes before 9pm, Dunleavy tweeted his appreciation: “Thank you to [the legislature] for voting to confirm 98 of my appointments today. Together my cabinet, board appointments, and I will continue to work diligently to make Alaska a better place to work and live.”
A few hours earlier, Dunleavy press secretary, Matt Shuckerow, sent an email with a similar message:
“While the Legislature and I may not always see eye to eye, I’m pleased they recognize that a Governor deserves the opportunity to put in place his or her own team,” Dunleavy said. “I congratulate each and every one of my Cabinet members on officially joining the ranks before them in leading their respective Departments. Collectively, we have assembled a remarkable group of Alaskans – from all walks of life – all focused on tackling the important issues before us. I look forward to continuing our work together on critical issues like public safety, a permanent fiscal plan for Alaska, streamlining regulations, opening Alaska for business, helping our economy flourish and so much more.”
Those ranks were a cobbled-together mismatch of generally qualified people, a ghost hunter, and understandably, a lot in between. But, something Dunleavy said in his brief but accurate victory lap is worth noting: “a Governor deserves the opportunity to put in place his or her own team.”
The Alaska Constitution is purposefully vague about what that means. Article III, Section 25 doesn’t afford legislators much autonomy or discretion when it comes to the cabinet: “He” – (we should probably fix that) – “shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and shall serve at the pleasure of the governor,” except when it comes to the office of the lieutenant governor.
Alaska deliberately set up one of the strongest executive offices in the Union. Somewhat comically it could be argued, in retrospect, The Alaska Constitution: A Citizen’s Guide offers that, “Few state constitutions grant as much authority to the governor as does Alaska’s. This is because most of the other constitutions were written with a history of tyrannical or corrupt executives in mind. Alaska’s experience was different.”
“Confirmation of executive appointees is a key legislative check on the executive branch,” Gordon Harrison, who wrote the Citizen’s Guide, explains in his introduction to Section 25. But there is no explicitly defined purview accorded legislators to tell them how to enact that check. In practice, there has been a common practice of applied smell checks: Have appointees done something so blatantly an affront to the position they’ve been pitched to fill that it precludes them from serving? Or, less often employed but an expected standard to follow: Is the appointee following the constitution, or seeking to operate around it?
In other words, an objection to an appointee can’t merely be controversial, or a display of possibly-excusable-as-routine-negligence – it has to be a gross violation or aberration not just from norms, but from the norms that exist within the administration making the appointment.
That means that, within the Dunleavy Administration, it takes someone disturbed enough to stop everything and say, “This is not normal.”
However you would like to define normal, we are not at normal. And wherever our current gauge for normalcy, that is not the gauge for normalcy in the Dunleavy Administration.
Adam Crum got a huge promotion to serve as the Commissioner of the Alaska Department of Health and Social Services, despite having a background in occupational and environmental hygiene – which is many things pertinent but a little lacking in the health policy department, which is literally the department he was appointed to run.
On Wednesday, he was approved 34-25.
Kevin Clarkson was tapped as Dunleavy’s attorney general. He has as close as one can come to a household name in Alaska conservative politics.
In 2016, Clarkson applied to replace the retiring Dana Fabe on the Alaska Supreme Court, but was passed over by Gov. Bill Walker (I-Alaska) for Associate Justice Susan Carney after scoring 2.7 (on a five-point-scale) on the Alaska Judicial Council’s Judicial Election Survey. It was the lowest ranking among applicants. Carney, on a scale where one point equals “poor” and five equals “excellent,” totaled 4.5 points.
So, that wasn’t good.
Clarkson also has fought against virtually ever court case involving equal rights for LGBTQ Alaskans and access to abortion. He was hired by the legislature in the 1990s to author the State’s constitutional amendment banning same-sex marriages. In a confirmation hearing before a joint session of the Senate Judiciary and State Affairs committees, he defended fighting marriage equality all the way up through Obergefell.
When Sen. Scott Kawasaki (D-Fairbanks) asked, ““If a bill were to come that would further restrict or curtail those [marriage] protections under the constitution now, either from the legislature or from the governor, how would you counsel him on that?”
““My advice to the governor will be based on what the law is,” he answered. “The Obergefell decision from the United States Supreme Court is the law of the land, so that is exactly how I would advise the governor at this time.”
He would use the phrase “at this time” a lot, questioning whether he would follow the self-identified “law of the land” or wait for an opportunity to rewrite it. If history is any suggestion, it’s the latter.
This boils down to a fundamental question: Why shouldn’t the governor have someone serving in his (OR HER) cabinet – even as the State’s top lawyer – who agrees with him or her ideologically? There is nothing in the constitution that suggests such a standard. What if in the case where it is not in the spirit of U.S. Supreme Court precedent? Should lawmakers who are operating without a constitutional mandate in confirmation proceedings get to object on principle?
The answer, thus far, is no. Only once in Alaska history has a cabinet official been denied confirmation. That distinction goes to Wayne Anthony Ross, who the Anchorage Daily News‘s James Brooks reminded political junkies Wednesday afternoon was, well, a clear aberration.
Ross once wrote to the Alaska Bar Association to voice his opinion that LGBTQ Alaskans’ “beliefs are certainly immoral in the eyes of anyone with some semblance of intelligence and moral character.” He also called them degenerates and perverts. He also once said, “If a guy can’t rape his wife… who’s he gonna rape?” and “There wouldn’t be an issue with domestic violence if women would learn to keep their mouths shut.”
That is the one and only cabinet member rejected by legislators, and that’s a low bar. Because it’s supposed to be.
As partisanship increases and we place certain expectations on lawmakers who we expect to stand up for us on ideological lines, to show cabinet appointees to the curb, know that that’s what the Alaska State Constitution chose very purposefully to avoid.
For better and worse. And the probability of worse is living famously.
But to be clear, it was designed this way. Because we trusted our governors. And if that’s changing, and we want something different in the confirmation process, than we’re going to have to create some criteria for those ends. Otherwise, we’re just yelling into indefinition.