Brownback says Stegall has no inside track to be on Kansas Supreme Court

08/15/2014 3:35 PM

08/15/2014 8:13 PM

Gov. Sam Brownback says he will not give preferential treatment to his former chief counsel when he interviews nominees for a vacancy on the Kansas Supreme Court later this month.

Brownback outlined on Friday the qualities he will look for in his Supreme Court pick to replace Justice Nancy Moritz, who is departing to serve as a federal appeals court judge.

“Competency. Judicial temperament. Good, solid intellect. Experience,” Brownback said. “And somebody who would make a good long-term judge.”

Many Democrats think it is a foregone conclusion that the governor will select Caleb Stegall, his former chief counsel, whom Brownback appointed to the Kansas Court of Appeals last year.

“Caleb Stegall’s going to be on the Supreme Court,” said Rep. Jim Ward, D-Wichita, an attorney. “And that gives the governor another pick on the Court of Appeals.”

Brownback denied that Stegall has an inside track among the three nominees chosen by the Supreme Court Nominating Commission earlier this month.

“I have to interview three people here,” Brownback said. “That’s what I’m going to be doing. Nice try. But I’m interviewing three people here. I want to see who everybody is that they send.”

The governor also said the opportunity to make another pick for the Court of Appeals carried no extra value.

The age limit for a Supreme Court justice in Kansas is 75. Stegall is 42, so if chosen, he could serve on the court for more than 30 years.

Before becoming the governor’s chief counsel, Stegall had worked under former Attorney General Phill Kline and as counsel for the influential conservative group Americans for Prosperity, which was founded by the Koch family.

He earned his law degree from the University of Kansas School of Law in 1999, ranking third in a class of 187.

His appointment to the Court of Appeals last year sparked controversy.

“The nomination of Caleb Stegall demonstrates the worst kind of political cronyism that is alive and well today under Governor Sam Brownback,” Senate Minority Leader Antony Hensley, D-Topeka, said in testimony to the Senate Judiciary Committee last September.

Hensley’s office declined to comment on Stegall’s possible elevation to the Supreme Court after less than a year on the Court of Appeals.

Stegall was at the state Capitol building on Friday. He said he could not comment on the nomination process while it was ongoing, and declined to comment about the past controversy.

Stegall was chatting with Brant Laue, the governor’s current chief counsel, in the Capitol Rotunda. Laue emphasized that the governor would be interviewing all applicants and had not made a decision.

During his confirmation hearings, Stegall’s writings were scrutinized.

Stegall has written extensively on legal issues, including on school finance for the Kansas Policy Institute, a conservative think tank.

He also served as editor of an online Christian magazine, The New Pantagruel, which published an editorial stating that forcible resistance to the removal of Terri Schiavo from life support would be justified.

“The overwhelming moral sense I have when surveying the modern world is one of loss,” Stegall said in a 2005 interview with the website GodSpy.

“It is true that liberalism – which is really the engine of modernism – as an ordering principle is tremendously powerful, and now has the inertia of centuries driving it forward still, but it has some significant weaknesses, chief among them that it lies,” he continued. “It lies about the human condition and it lies about the reality of natural limits embedded in reality. Human freedom and consumption simply cannot expand infinitely. Eventually, the structures supporting such expansion will give way, and it remains to be seen what, if any, civilizing forces will be left to bring order out of that chaos.”

Erin Thompson, a lawyer based in Mission, voiced concern about Stegall’s ability to be impartial on the bench.

“I think the concern is the Kansas Judicial Branch has such a great tradition of being independent and really bringing a common sense balance to the other branches of government. And when you have somebody with that ideology it is concerning,” she said.

“I think you want people who are able to look at both sides of the issue and don’t bring this background with them,” Thompson said.

Thompson was on the legal team that successfully defended George Tiller, a now deceased Wichita doctor who provided abortions, against misdemeanor charges in 2006. Stegall represented Kline, who was called as a witness at a hearing.

“I have actually had the experience of staring down (and defeating more often than not) our real enemies from the abortion industry to trumped-up bureaucrats to meddling school districts to vendetta-wielding functionaries to dim-witted city hall,” Stegall wrote in a 2009 post on the conservative website Front Porch Republic.

Senate Vice President Jeff King, R-Independence, presided over Stegall’s previous confirmation hearing as chairman of the Senate Judiciary Committee.

“The confirmation process for Judge Stegall was the most thorough and certainly the most public vetting of a prospective judge in Kansas history,” King said. “Everything he’s written was known and available to the public …and I stand by the thoroughness of that process. I stand by Judge Stegall’s qualifications.”

“And I think that the actions of the Supreme Court Nominating Commission, a bipartisan group, saying after meeting with Judge Stegall and reviewing his records that not only is he qualified to be a Court of Appeals judge, they actually think he’s one of the most qualified people in the state to serve on the Supreme Court, I think that just validates everything that we did in his confirmation hearing,” King added.

Anne Burke, the chair of the nominating committee, said the committee looked for candidates with an even temperament and strong administrative skills.

“The Supreme Court Nominating Commission looks for the best legal thinkers and the best legal writers who possess a strong work ethic,” she said in a statement. “We look for someone who can be fair, impartial and independent.”

Ward, a Democrat, criticized Stegall’s appointment to the Court of Appeals but said that his nomination for the high court occurred through a merit-based process so he would not question it.

“I’m a merit-process guy. And the merit process put his name on the list,” Ward said. “I hope the governor gives the other two candidates a fair review.”

The other two nominees before the governor are Judge Karen Arnold-Burger, who has been on the Court of Appeals since 2011 after working as a municipal judge for 20 years, and Judge Merlin Wheeler, who has been a district court judge since 1990.

King said all three were excellent choices for the position.

“We’ll quiz people about a lot of different areas,” Brownback told reporters Friday during a campaign event in Topeka. “I take judicial selections very seriously. This is something that is a very important function of the governor’s office. So we spend quite a bit of time looking at the individual.”

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