A proposal that would give the governor more power over selecting Kansas Supreme Court justices cleared one legislative hurdle Wednesday but fell short of the votes needed to gain final passage.
The House vote was 69-53. That’s 15 votes short of the two-thirds majority that would be needed to send the proposed constitutional amendment to the Senate. Unless Republican leaders can sway enough lawmakers who voted against the measure to change their votes, it will be defeated Thursday.
HCR 5005 would allow the governor to appoint state Supreme Court justices subject to Senate confirmation. That is similar to the way federal judges are selected. The proposal would go to voters in November if both chambers sign off on it.
During 90 minutes of discussion, supporters in the House said the proposal would bring the judicial branch closer to the people.
“That model has served our nation well throughout its history and will serve Kansas well if it is adopted,” said Rep. James Todd, R-Overland Park.
Opponents of the change said the current system works and that House Republicans are trying to manipulate the system to appoint justices who will make rulings that support their agendas.
We don’t select judges who will vote the way we want them to.
Rep. John Carmichael, D-Wichita
“That is the epitome of the wrong attitude for judicial selection,” said Rep. John Carmichael, D-Wichita. “We don’t select judges who will vote the way we want them to. We select the brightest, the best, folks who have the judgment to make these hard decisions.”
The current selection system relies on a nominating commission made up of five lawyers selected by the state’s lawyers and four people selected by the governor. The governor chooses one of three finalists nominated by the panel.
“It’s a screen, if you will, to try to produce only the best qualified nominees,” Carmichael said. “We have tried to achieve a balance between the voice of the people while, at the same time, protecting the minority from … the tyranny of the majority.”
Changing the selection process has been a goal of Gov. Sam Brownback. But he has struggled to gain traction for it in the House, said Bob Beatty, a political scientist at Washburn University.
If I would be honest, I don’t know that I expected it to get to 84 votes.
Rep. James Todd, R-Overland Park, who carried the bill into the House
Todd, who carried the bill, said he didn’t know what kind of support the amendment would get.
“If I would be honest, I don’t know that I expected it to get to 84 votes,” he said. “It was within the range of what I thought we would get. You never know until somebody votes.”
Beatty said it would be difficult for Brownback and other supporters to change enough minds to pass the measure by Thursday.
“In the best of circumstances, 15 votes would be tough,” Beatty said.
Beatty added even if the amendment fails, it could be used as a political weapon in the election.
Kansans For Life sent an email to lawmakers saying “failure to support HCR 5005 will be considered incompatible with our standards for endorsement in the upcoming election.”
Supporters of the amendment say they want Kansans to have more of a say in the process.
“We’re showing faith in 2,500 lawyers,” said Rep. John Whitmer, R-Wichita. “I’d like to show faith in 2.9 million Kansans.”
Both Brownback and Attorney General Derek Schmidt have called for voters to have a say on the selection system.
Carmichael and others contended that the people are already involved because they elect the governor and they vote in retention elections for Supreme Court justices. Those justices face retention votes every six years. It’s every four years for judges with the Court of Appeals.
The state Supreme Court has drawn criticism for overturning the death sentences of Jonathan and Reginald Carr for killings in Wichita in 2000. The U.S. Supreme Court recently reversed the state high court in the case.
Some representatives are angry with the judicial branch as a whole, including the Kansas Court of Appeals for a ruling last month finding that the state constitution protects the right to an abortion.
The fact we have one branch of government that is so out of touch with the people of this state is reprehensible.
Rep. Craig McPherson, R-Overland Park
“The fact we have one branch of government that is so out of touch with the people of this state is reprehensible,” said Rep. Craig McPherson, R-Overland Park.
But Todd said he tried to avoid making points about individual rulings.
“There is an argument to make a change in judicial selection,” he added later that afternoon. “I think it doesn’t have to be a reaction against any current rulings or future rulings.”
Chief Justice Lawton Nuss voiced strong opposition to changing the selection process when he spoke to reporters after delivering his annual State of the Judiciary address Wednesday.
He said the present system was designed to protect against political shenanigans and said it was superior to the proposed alternatives. He rejected the idea that the current system is undemocratic.
“Every six years the voters of Kansas get an opportunity to go into the voting booth and say do they want to keep Lawton Nuss as a justice … I don’t know how much more democratic you can get in a process that puts my future in the hands of the voter directly,” Nuss said.
“This is grassroots democracy,” he added.
The current system was established through a constitutional amendment approved by voters in 1958. It was inspired by events in 1957 known in Kansas politics as the “triple play.” The Kansas Supreme Court’s chief justice stepped down. A governor in his last days of office resigned. And the new governor appointed his predecessor to the high court.
Contributing: Bryan Lowry of The Eagle