The Kansas Senate may be ready to alter how members of the Kansas Supreme Court and Court of Appeals are chosen, and to ask voters to concur on an upcoming statewide ballot. But the House should put the brakes on this hasty reform, which would rewrite the state’s constitution to serve a shortsighted political goal and have Kansas follow the flawed federal model.
Currently, attorneys apply for each opening on Kansas’ appellate courts and are rigorously vetted by a nine-member nominating commission of five attorneys and four gubernatorially appointed non-attorneys. The commission recommends three names to the governor, who picks his preference. Voters decide whether to retain Supreme Court justices every six years and Court of Appeals judges every four years.
As it is, the priority is finding attorneys from across the state who have the experience and judgment to serve on these courts – individuals who will make decisions based on the law, not for ideological, political or other reasons. The commission process rightly relies on people who best know the law – practicing Kansas attorneys, guided by input from laypeople – to assess the readiness of other attorneys to sit on these crucial courts.
“The commission is designed to ensure the conduct of the executive branch does not threaten the integrity of the judicial branch,” wrote Judge Terrence O’Brien of the Denver-based 10th U.S. Circuit Court of Appeals, in a September ruling rejecting a challenge to Kansas’ judicial-selection process.
The status quo recently received another powerful endorsement from the U.S. Chamber of Commerce’s Institute for Legal Reform, which ranked Kansas as fifth best in the nation for its legal climate overall, as well as fifth in the category of damages, eighth for judges’ impartiality and ninth for judges’ competence.
Yet Gov. Sam Brownback declared in his State of the State address earlier this month that the current system of judicial selection fails “the democracy test.” Senate President Susan Wagle, R-Wichita, similarly said that “it’s a priority to fix a biased system,” and is expected to lead her chamber to debate a constitutional amendment Wednesday. Two-thirds approval in each chamber is required, plus a simple majority on a statewide ballot. The Senate measure would schedule the vote for August 2014 – a primary election unlikely to draw the large turnout deserving of such an important issue for justice in Kansas.
The proposed remedy? Letting the governor pick anyone he wants, subject to Senate confirmation. The nominating commission would be history, as would the priority to put the best-qualified people on these appellate courts.
Judging from what happens at the federal level, any governor’s picks would have to curry favor with senators more interested in discerning their ideology than their capacity to make decisions based on the law.
Kansans should change their constitution only for a compelling reason, not because of some political argument of the moment.