The survey question for Kansas Senate candidate Gary Mason was straightforward.
“What, if any, changes would you like to see made to the state’s abortion laws?”
His straightforward answer: Change the courts.
“I think we need more balance in the state court,” Mason said in an interview. “If we had better balance, we would probably see better results.”
In answering the abortion question from The Eagle’s candidate questionnaire, Mason said he supported a bill handing over state appeals court appointments to the governor with confirmation from the Kansas Senate.
Mason, who is running against incumbent Carolyn McGinn in District 31, is among dozens of candidates running for the Kansas Legislature this year who want to change the way Kansas picks its highest judges.
While most of the talk during the primaries has been about taxes, schools and jobs, selecting judges is an issue that lingers in the background.
“If the conservatives take the Kansas Senate, it makes sense they would want to as soon as possible be able to play a role in the selection of judges,” said Washburn University political science professor Bob Beatty.
“That is a very important thing to many conservatives, to be able to rein in what they view to be activist judges.”
Mason supports a bill that was one of the few prizes out of reach of Gov. Sam Brownback and conservative lawmakers during this year’s legislative session. The proposal, which would have let Brownback appoint state appeals courts judges with Senate confirmation, is expected to return.
McGinn voted against the bill last session. She said the backlog of federal judge nominees awaiting confirmation from the U.S. Senate shows how politics can get in the way of picking judges.
“The Washington-style system doesn’t seem to be working,” she said.
Conservatives are tired of what they believe are liberal, activist judges – a label generally assigned to those they think let their politics trump deference to the Constitution. They want to move from a system that uses a panel with a majority of lawyers picking judicial candidates to one they think would give the general public more input.
“The conservative voice in Kansas is not heard on the bench, as far as I am concerned,” said Johnson County state Rep. Charlotte O’Hara, who’s running for the Senate.
Supporters of the current system say it protects the judicial branch from political gamesmanship, best illustrated in 1957, when a former Kansas governor maneuvered to get himself appointed to the state Supreme Court.
They charge that efforts to change the selection process are driven by an ideological agenda and Brownback’s desire to leave a conservative footprint on state government.
“The governor wants to take over all three branches of government,” state Sen. Tim Owens, R-Overland Park, said at a recent forum.
Owens said he angered the Brownback administration because he refused to go along with changing the way the state picks judges. Owens is now in a hot primary contest with conservative state Rep. Jim Denning, who supports giving the governor the ability to appoint judges.
“I believe in the merit selection of judges,” Owens said. “If we lose that, we are in real trouble because the decisions that will be made will be political according to what the governor would like to see.”
The Brownback administration has urged a change in picking appeals courts judges, saying the current procedure isn’t democratic and gives a “select group of unaccountable specialists” sway over the judicial branch.
Owens led the defeat of a bill in the Senate this year that would have let Brownback appoint state appeals courts judges with Senate confirmation. The proposal would have moved Kansas toward a system similar to the federal government’s, in which the president nominates judges who are confirmed by the Senate.
The current process
Currently, state appeals court judges are screened by a nine-member nominating commission that includes five attorneys plus four non-attorneys named by the governor. The governor chooses someone from a list of three nominees selected by the commission.
Nominees for the state Supreme Court are chosen the same way, but that procedure is harder to change because it’s set by the state constitution.
Kansas is the only state that gives lawyers a majority control over the selection of judges, according to legislative testimony.
A 2007 legal paper written for the anti-abortion Americans United for Life contends that the Kansas Supreme Court is “activist and left of center.”
Abortion opponents lobbied hard last spring for the bill that would have given the governor the ability to name appeals court appointees. They argued that a gubernatorial appointment with Senate confirmation would offer a chance for the public to learn how judicial candidates think about abortion.
“Now that we’re winning in the state Legislature and getting bills signed into law, our opponents’ only recourse is to sue,” said Mary Kay Culp, executive director of Kansans for Life.
Culp notes that the legal challenge against new rules for abortion clinics has been moved to state court from federal court.
“It’s important that we have a fair judiciary and Kansas is known for having the least-transparent judicial nomination process in the country,” she said.
Other issues are fueling efforts to change the way judges are selected in Kansas. They include:
• In 2004, the Kansas Supreme Court struck down the state’s capital punishment law because it found that jury instructions were unfair to defendants. Two years later, the U.S. Supreme Court restored the state’s death penalty law.
• In 2005, the Kansas Supreme Court ordered to the state to spend hundreds of million mores dollars on schools.
Since then, lawmakers have tried unsuccessfully to limit the courts’ ability to direct the Legislature to spend money.
Advocates of the current system say it is designed to insulate the judicial system from political games.
They point to the so-called “triple play” of 1957 when Gov. Fred Hall resigned just before the end of his term. The new governor, Lt. Gov. John McCuish, in turn, appointed Hall to a vacancy on the Kansas Supreme Court. McCuish was governor for 11 days. The maneuver led to the judicial selection system the state has today.
“I think the absolute goal of selecting justices is to attempt to influence the independence of the judiciary on specific topics,” said Lee Smithyman, an Overland Park lawyer and president of the Kansas Bar Association. “Those topics are constitutional issues and those constitutional issues are our basic freedoms.”
Smithyman said a lot has been made of the fact that there’s one more attorney on the nominating commission than non-lawyers.
Membership of the bar association “extends to all political views and all ideas and represent all segments of society,” Smithyman said. “We seldom have unanimity on any particular topic.”
The bar association thinks lawyers play a vital role in the process, he said.
“No one has a better idea of who will make a good judge or not than another attorney who has practiced in the area and in the community,” he said.