Gwyn Mellinger: Judicial change is on the fast track

01/25/2013 6:24 PM

01/25/2013 6:24 PM

There are legislative priorities, and then there are legislative priorities.

Within 24 hours of Gov. Sam Brownback’s Jan. 15 State of the State address, in which he asserted that the nominating process for top judges fails “the democracy test,” the House and Senate judiciary committees were holding hearings.

Then on Wednesday – just a week after the speech – the House panel sent a resolution to the floor calling for Kansans to vote on a constitutional amendment to change the way judges are appointed to the Kansas Supreme Court and Court of Appeals. No longer would the governor be limited to one of three finalists chosen by the Supreme Court Nominating Commission, a majority of whose members are elected by Kansas attorneys and outnumber the nonlawyers appointed by the governor.

Instead, under the proposed federal model, the nominating commission would be disbanded and the governor would choose his own nominee, who would be confirmed by the Kansas Senate.

A day later, on Thursday, the Senate Judiciary Committee endorsed a similar resolution. The change now must be approved by two-thirds votes in both chambers and then by Kansas voters.

This is not a new issue for the governor, who sought changes from last year’s Legislature, only to be thwarted by moderate Republicans in the Kansas Senate. But this time around, that rebuff will be vindicated by the election sweep of Brownback-supported conservatives, who now dominate the Senate and are dutifully fast-tracking the governor’s agenda.

For Brownback, the political urgency to change the process is intensified by the Kansas Supreme Court’s 2006 declaration that the state was not meeting its constitutional obligation to fund public education. On Jan. 11, a panel of three district court judges ruled that school funding was deficient by $440 million, an unplanned expenditure that would foil the governor’s plan to eliminate the state income tax.

Not considered in conservative reaction to this ruling, which has been appealed to the state Supreme Court, is the likelihood that Kansas schools are indeed underfunded. But that’s not the point.

The resolution passed out of the House Judiciary Committee on Wednesday would isolate control of the nominating process in the governor’s office. That was the situation in 1957 when Gov. Fred Hall resigned near the end of his term, elevating his lieutenant governor, who appointed Hall to a vacancy on the Kansas Supreme Court. Kansans responded to the “Triple Switch” by very democratically amending the Constitution to take the appointment power away from the governor.

Not only do Brownback and his allies ignore the lesson of history, but the proposed reform assumes their hold on state government is permanent and that like-minded governors will always be making the appointments. The reality, however, is that the political pendulum always swings: Kansas will elect a Democratic governor again, and the Senate eventually will be more moderate.

One criticism of the current process does indeed highlight a failure of “the democracy test.” The nominating commission conducts some of its work behind closed doors, which is contrary to the concepts of government transparency and citizen oversight.

That said, allowing a committee of one to make the nomination is no fix.

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