September 2, 2014

Judicial selection system worked

If the screening of applicants by the Supreme Court Nominating Commission ensures that only liberals reach the state’s high court, as critics charge, how did it happen that Gov. Sam Brownback’s first chosen justice was someone as conservative as he is, his former chief counsel Caleb Stegall? That’s because the critics are wrong and the system works.

Kansas is among the two-thirds of states that select at least some Supreme Court justices through a commission-based gubernatorial appointment process. As the University of Denver’s Institute for the Advancement of the American Legal System said in releasing a new study on how states choose justices: “Commission-based gubernatorial appointment, with a well-structured and operated nominating commission, is a proven, effective alternative to other selection methods, which often politicize judges and emphasize campaigning over experience.” The system means attorneys “need not have political connections, a campaign war chest or the support of special interests to apply” and that the decision “focuses on candidates’ experience, character and qualifications,” according to the study.

That’s what Kansas’ nominating commission has done for 56 years to help governors fill Supreme Court openings. It had done the same for the Court of Appeals until last year’s unneeded reform by the Legislature, which gave the governor free rein to choose those judges subject to state Senate confirmation.

When Brownback went for the person he knew and trusted best among the three names the commission recommended last month for the Supreme Court, he was only exercising the discretion afforded him by the state constitution.

He also happened to be making a sound choice, which makes partisan critics of Stegall as off base as partisan critics of the court. Though Stegall’s time on the Court of Appeals has been brief, his reputation, intellect and legal experience, including as Jefferson County’s elected prosecutor, have earned him bipartisan praise. Before his addition to the Court of Appeals he was described as “well-qualified” by House Minority Leader Paul Davis – now the Democratic gubernatorial nominee – who looked political himself last week in criticizing Brownback for putting “his own political agenda before the best interests of Kansans” in elevating Stegall to the Supreme Court.

Those concerned about some of Stegall’s past clients and writings should trust his references and his statement last week that he is “devoted to our democracy’s promise of a fair, impartial and independent judiciary that is committed to the rule of law.”

It’s probably too much to expect the governor to say he misjudged the state’s system of picking Supreme Court justices – which he said last year failed “the democracy test” and was controlled by a “special interest group.” But in the wake of Stegall’s selection Brownback should at least call off the legislative dogs who’d like to further underfund and undermine the high court and to abolish the nominating commission entirely.

For the editorial board, Rhonda Holman

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