TOPEKA — The morning after the Kansas Senate approved Gov. Sam Brownbacks office attorney Caleb Stegall for a seat on the state Court of Appeals, a Washington-based conservative group ran a full-page ad in the Topeka newspaper thanking and congratulating all three.
It was a symbolic victory dance for conservatives success in changing the way appellate judges are selected and an opening shot in a coming battle over a much bigger prize: a constitutional amendment to change the makeup of the state Supreme Court.
Stegalls nomination was the first state test of the federal model for selecting judges.
His confirmation during a special session of the Legislature last week went down exactly the way Democrats said it would when Republicans passed a law changing the appeals court selection process early this year: The governor picked a close associate with a conservative legal philosophy, and the Republican-dominated Senate easily confirmed him.
The governor said he doesnt know whether the Stegall nomination and confirmation will help or hurt the chance of a constitutional amendment to change the way state Supreme Court justices are selected.
But Brownback, a former U.S. senator, said he thinks the federal model now used for Kansas appellate judges is better than the merit system that screens applicants for the Supreme Court.
The (federal) process engages the public more, Brownback said. It engages the Legislature, which the prior process didnt engage. It engages the governor more; the prior process had a pretty limited role for the governor.
So Id hope people would look at it and say, Thats a more open, public-engaging process than the closed system that we had here.
The federal model follows the practice laid down in the U.S. Constitution for picking federal judges and justices: At the federal level, the president makes a judicial nomination and then the Senate votes yes or no on the nominee. Substitute governor for president, and you have the Kansas system for picking appeals court judges.
In the merit system, a commission of five lawyers elected through the state bar and four nonlawyers appointed by the governor narrows the list of applicants to three. The governor then chooses one for the court. The Legislature has no involvement.
Senate Minority Leader Anthony Hensley, D-Topeka, was the most vocal critic of Stegall and the process that put him on the judicial bench.
Now that Kansas has seen the federal model in action, Hensley said, he thinks the outcome diminishes the chances of a constitutional amendment passing, because there is a great deal of concern about politicizing the judiciary.
It seems to me the alarm bells sounded loudly enough in the Senate that the House has heard enough of that dissension that they would be reluctant to obtain the two-thirds majority vote (needed to pass a constitutional amendment). They have enough moderate Republicans with Democrats to stop it.
The coming fight
Both sides got something from the Stegall confirmation that they wanted in the battle for public opinion, said Bob Beatty, a professor of political science at Washburn University and longtime observer of Capitol politics.
Those who are for the (federal) process can say, Look at all the publicity (over Stegalls nomination); thats better than the previous situation, where nobody even talked about it, Beatty said.
Meanwhile, those who prefer the merit-based selection process currently used for Supreme Court nominees can say: Look what happened. You changed the process and got one of the governors friends to be a judge.
Beatty expects both sides to pound the other with those messages over the next year if the Legislature decides to put Supreme Court selection to a vote of the electorate.
It might be a matter of who gets their message out the loudest, Beatty said.
The stakes are high.
The Supreme Court and the Legislature have clashed several times over the years, especially on education funding.
In the past, the court has ruled that lawmakers failed to meet their constitutional duty to provide suitable funding for education and ordered them to add hundreds of millions of dollars to school budgets.
Many lawmakers have bristled at that, arguing that they should decide what suitable funding is and that the court is overreaching by telling a separate branch of government what to do.
There are political ramifications as well. Although a Republican governor would almost certainly get any applicant he or she chose through the Republican-dominated Senate, Democratic governors would have a much harder time.
Although Democrats can and occasionally do win gubernatorial races, they hold only eight of 40 seats in the Senate.
In the long term, it (the federal model) puts a check on a Democratic governor, Beatty said. Thats the reality of Kansas politics.
Issue not dead
The path that brought us here starts in January 1957, with the so-called triple play executed by then-Gov. Fred Hall, a lame-duck officeholder who used his final days in office to engineer his own appointment to the Supreme Court.
First came the resignation of then-Chief Justice William Smith, who had served on the court for 26 years. Hall resigned the governorship 11 days before his term ended and passed the power to appoint to Lt. Gov. John McCuish, who immediately appointed Hall to the open seat on the court.
Although that was legal, it sparked public outrage that a governor on his way out of office could game the system to retain a powerful position in state government. The result was a constitutional amendment establishing the merit process for selecting Supreme Court justices.
That put Statehouse Republicans in a bit of a bind this year when conservatives, fresh from strong victories at the polls over their partys moderate faction in the Senate, moved to change the way judges and justices are selected.
They could and did change the Court of Appeals selection process, passing a regular statute with a simple majority and Brownbacks approval.
But because the Supreme Court process is written into the constitution, they need two-thirds of both houses of the Legislature and a majority vote of the electorate to change it.
They got their two-thirds in the Senate, but the measure stalled in the House, where that level of approval was less certain.
The chairman of the House Judiciary Committee, Rep. Lance Kinzer, R-Olathe, has vowed to bring it back up in the next session.
Other Republican lawmakers plan to push for a bill to lower the mandatory retirement age for state judges and justices, seeking to speed turnover in the court and hasten the departure of aging court members selected by Democratic governors.
The debate on judicial selection has sparked some strange role reversals.
Democrats who usually hail federal court rulings on numerous issues find themselves arguing that the method for choosing federal judges is rank cronyism and political manipulation of the judiciary.
Meanwhile, Republicans who routinely rail against federal courts find themselves arguing in favor of the way their judges are selected.
Transparency is the buzz word on both sides. Both say the others system doesnt have enough of it.
Both systems have elements of transparency and opaqueness just at different points of the process.
In the merit system, the names of all applicants for judicial positions are made public and applicants are interviewed in open session. But the actual deliberation, when committee members select the final three names to submit to the governor, is done behind closed doors.
In the federal model, the governor doesnt have to tell the public who applied for judicial jobs and Brownback has decided not to. The interviews and deliberations leading up to a nomination are private. The Senate confirmation process, however, is open to the public. And, at least in Stegalls case, it generated far more public interest and media coverage than the interviewing of applicants under the merit system.
The Kansas Bar Association continues to support merit selection and to oppose the federal model, said Lee Smithyman, immediate past president of the bar who fought the issue through the legislative session.
Smithyman said he thinks Stegall is a bright and capable lawyer, but the process was anything but transparent and anything but democratic.
He said its problematic that the governor would nominate his own chief legal counsel and that no one knows who else, if anyone, was considered.
In addition, the Senate confirmation, along straight party lines, took less than two hours, he said. To me, that speaks volumes for preserving merit selection.
Stephen Ware, a University of Kansas law professor who provided conservatives the underlying legal rationale for changing the system, did not return phone and e-mail messages seeking comment.
Wares primary objection to merit selection is that five of the nine members of the judicial nominating commission are chosen in an election open only to lawyers about 10,000 people while the governor and senators are chosen by popular vote. He has testified that he thinks that violates the principle of one person, one vote, because it elevates the vote of lawyers over that of ordinary citizens.
Although the battle lines have been drawn around the federal system and the merit system, which is also called the Missouri system, Beatty said that actually is something of a false choice.
Both systems have elements that could be improved upon, he said.
He said there are two main goals in a judicial selection process: picking quality judges while assuring the public that its getting an independent judiciary.
In terms of choosing judges, theres always a lot of talk about whos most qualified, he said. Its not always whos most qualified if a pick erodes the publics faith in democratic institutions.
A hybrid system with a merit committee to narrow the list of applicants on the front end combined with a Senate role in approving the governors appointees on the back end might be the best of both worlds, he said.
We always talk about the federal model and the Missouri model, he said. Maybe what we need is a Kansas model.