Gov. Laura Kelly will make one of the most consequential decisions of her time in office in the coming weeks when she picks a Kansas Supreme Court justice — a choice with the potential to affect the state for decades to come.
One of the three finalists for the job could spur a conservative backlash.
Anti-abortion activists are opposing Shawnee County District Court Chief Judge Evelyn Wilson’s nomination. They point to political contributions made by her husband to Kelly and other politicians supportive of abortion rights.
If the governor chooses Wilson, she risks fueling conservative anger that could one day reduce her power — and the power of future governors — to select Supreme Court justices.
The decision confronting Kelly comes at a time of frustration among some lawmakers with the Kansas Supreme Court. A series of opinions in recent years have made many Republicans furious, from decisions overturning death sentences to repeated rulings that Kansas didn’t properly fund schools.
Conservative frustrations only grew after the court’s landmark decision this spring that the state constitution protects the right to an abortion. Now, abortion politics threaten to make their way into the Supreme Court selection process.
Kansans for Life, which opposes Wilson’s nomination, called her selection as a finalist “purely political.” It’s also drawing attention to past contributions from her husband, Michael Wilson, to politicians including former Gov. Kathleen Sebelius (Wilson has told the Associated Press that Evelyn won’t comment and doesn’t get involved in politics).
Unlike the federal government, where the president nominates justices and the Senate confirms, Kansas uses a nominating commission to help fill Supreme Court vacancies. The commission interviews applicants and then sends the governor three finalists, who appoints one to the court.
Kansans for Life accused the commission of failing to ask hard questions during interviews of applicants. The commission “does not speak for Kansans but for lawyers and political insiders,” Kansans for Life lobbyist Jeanne Gawdun said.
The commission met Friday to make recommendations. Mikel Stout, its chairman, said the panel had “some really good candidates” and the decision wasn’t easy.
For her part, Kelly is signaling she won’t be swayed by political pressure.
“I take the immense responsibility of appointing a Supreme Court justice very seriously. We will thoroughly review, vet and interview each of the three individuals nominated for a seat on the Kansas Supreme Court,” the governor said in a statement.
“The role of the person selected will be to fairly and impartially interpret and apply Kansas law. My final decision will be based on qualifications, not politics.”
Along with Wilson, Kelly could also pick either Dennis Depew or Steven Obermeir. Both work in the Kansas Attorney General’s Office.
But choosing Wilson could anger Republicans, some of whom already want to pursue changes to the selection of justices in the coming year.
Any significant change would likely have to come in the form of a constitutional amendment and would ultimately go before voters.
Sen. Julia Lynn, an Olathe Republican, said the selection of Wilson would be “an impetus” for looking at judicial selection.
“What’s really on the line is whether or not the Legislature decides to keep the system in place or craft a new system that would provide more transparency and accountability on the part of our Supreme Court,” Lynn said.
A system where the Senate has power to confirm justices would give Republicans more power over the makeup of the court. While Kansas switches between Democratic and Republican governors relatively often, the Senate has been held by Republicans for decades.
The stakes in picking Supreme Court justices are high and are among the longest-lasting decisions a governor makes. Their decisions alter the course of Kansas history and affect the lives of countless Kansans.
“That is a living legacy,” said Sen. Rick Wilborn, a McPherson Republican who chairs the Senate Judiciary Committee.
Voters do have the power to kick out justices in retention elections. But Kansas voters have never removed a Supreme Court justice despite aggressive campaigns in recent years.
“The fact that they’re retained based on their records that a lot of people don’t pay attention to is troubling,” Lynn said.
Senate Minority Leader Anthony Hensley, a Topeka Democrat, said Kansans for Life’s opposition to Wilson is an argument in favor of continuing the current nominating commission process. He accused them of “basically inserting politics into this process.”
Former Gov. John Carlin, a Democrat who named three justices while in office, couldn’t recall ever feeling pressure over a specific issue.
“It was a different time,” Carlin said. “Things weren’t as viciously partisan by a longshot.”