The secretive process being used by Gov. Sam Brownback to fill a vacancy on the Sedgwick County District Court provides another reason why legislators shouldn’t let him take over judicial selection for the Kansas Court of Appeals.
The Senate recently passed a constitutional amendment that would give the governor free rein to pick members of both the Court of Appeals and Kansas Supreme Court, subject to state Senate confirmation. Doubt in the House may have foiled a constitutional change, but the chamber voted to scrap the 36-year-old law that assigns the Supreme Court Nominating Commission of attorneys and non-attorneys to screen applicants and recommend three finalists to the governor for each vacancy on the Court of Appeals.
If the Senate passes House Bill 2019, which could happen Tuesday, Kansas will end up with one method of selection for its Court of Appeals and another for its Supreme Court. Such a hybrid system would be unique in the nation, some legal experts say – and the solution to a nonexistent problem.
As Tom Malone, chief judge on the Court of Appeals, noted in House testimony, less than 3 percent of the court’s decisions are reversed or modified on review by the Supreme Court, and the U.S. Chamber of Commerce last year ranked Kansas as fifth best in the nation for a business-friendly legal system, eighth for judicial impartiality and ninth for judicial competence. Where’s the problem?
The House bill also could create long vacancies on the court, with a seat that became vacant after the Legislature had adjourned in May remaining open until a Senate confirmation vote could be held in January. That’s no way to treat this vital court.
And what’s going on in Sedgwick County provides a troubling preview of what Brownback has in mind for the Court of Appeals.
To fill the Sedgwick County District Court vacancy created by Brownback’s appointment of Judge Tony Powell to the Court of Appeals, the Governor’s Office took the applications itself rather than continue the long tradition of using a Wichita Bar Association panel to vet candidates and publicly recommend three finalists. Brownback’s spokeswoman said last week that 15 lawyers had applied for the judgeship, but that applicants’ names would not be made public.
Never mind transparency – something GOP lawmakers have called for in urging appellate-court reform – or how local expertise could have informed the selection and ensured that Sedgwick County’s particular needs were served.
While Brownback has complained that the status quo “allows a special-interest group to control the process of choosing who will be our appellate judges,” he is functioning as a special-interest group of one for the District Court opening.
Legislators should not give Brownback the power to treat the Court of Appeals selection process with similar disdain for legal input and public scrutiny.