Gov. Sam Brownback could help counter the fears that he’s waging a political takeover of the state’s judiciary if he released the names of the applicants for the Kansas Court of Appeals. As it is, Kansans will have no idea who applied for the new 14th seat on the state’s second-highest court, and no way of assessing whether Brownback’s eventual pick was the best applicant.
And because that choice must now await Senate confirmation, the new judge can’t take his or her seat until January at the earliest – more than halfway through the fiscal year that began Monday.
Welcome to the weird new world of appellate judicial selection in Kansas, which Brownback sold to legislators as a remedy for a merit-selection process that he and other Republicans characterized as secretive and undemocratic. At least this new selection system doesn’t apply to the Kansas Supreme Court, but that’s only because Brownback has lacked the House votes to pass a constitutional amendment giving him the same power to name justices.
The members of both courts have long been vetted by a nine-member nominating commission of five attorneys and four gubernatorially appointed non-attorneys; the commission has recommended three names to the governor, who picks a preference. For 32 years, Kansans have known who applied for the openings and made the top three, as well as who got the job.
But Brownback spokeswoman Eileen Hawley said last week that “we will not be releasing the names of the applicants” and the Court of Appeals appointments will be treated the same as appointments to Brownback’s Cabinet and to state boards and commissions.
That lack of transparency mirrors the method Brownback recently used to fill a Sedgwick County District Court opening, when he bypassed the traditional input from a Wichita Bar Association screening committee and his office would only say that 15 attorneys had applied for the judgeship.
The independent, nonpartisan appellate courts that have served Kansas so well for decades are at risk, targeted for executive- and legislative-branch tampering by a conservative GOP that inexplicably prizes the bitterly partisan federal model of picking judges. Next year lawmakers also are expected to take another run at the Supreme Court, including with dubious proposals that would lower justices’ retirement age, allow the governor to make lifetime appointments to the court and end its review of criminal cases.
Anne Burke, an Overland Park attorney who chairs the nominating commission, rightly called the decision against releasing the names of Court of Appeals applicants “appalling and terrible.”
Brownback should reverse course and release the applicants’ names. And lawmakers should resolve not to give him similar control over the Supreme Court.