Editorial: Lawmakers must protect our Constitution, not shred it for political gain
A move to amend the Kansas Constitution and change the way Supreme Court justices are selected failed its first test in the state Senate.
And if there’s to be any actual justice in Kansas, it will fail over and over again.
This pernicious proposal, fronted by Senate President Ty Masterson of Andover, would do away with selecting justices on their merits and politicize the state Supreme Court.
The proposed constitutional amendment fell one vote short of the two-thirds needed for passage in the Senate a little more than a week ago, but it’s almost certain to resurface later in the session.
Under the current system, justices are chosen through a merit-selection process put in place by voters in 1958 — the year after they witnessed a corrupt lame-duck governor engineer his own appointment to the state’s highest court with the help of his cronies, after the people had voted him out of office.
The people who created merit selection knew what high-level judicial corruption looks like because they’d seen it in action.
And they built a system for selecting justices that is arguably the nation’s best.
The current system brings together attorneys and lay persons on a nominating commission, which forwards three qualified candidates to the governor, who picks one from the list.
Senate Concurrent Resolution 1621 would disband that commission and let the governor pick anybody. The Senate would have the final say.
It’s great if you’re a senator — not so great if you want your Supreme Court justices to be impartial protectors of all of our individual rights, instead of a rubber-stamp for the Legislature.
Now, it’s not like the system that Masterson’s pushing hasn’t been tried.
It has. And frankly it’s been a disaster.
A brief history: In 2013, at the request of then-Gov. Sam Brownback, the Legislature changed the state Court of Appeals from merit selection to governor appointment with Senate confirmation.
Speaking of cronyism, the governor’s first appointee under the new system was his own lawyer.
It’s gone downhill since.
In 2020, Gov. Laura Kelly nominated the eminently qualified Carl Folsom — an experienced state and federal public defender and private practice attorney supported by Sedgwick County District Attorney Marc Bennett and other prosecutors across the state.
The Senate rejected that nomination for the worst of reasons: that as a public defender, Folsom once represented a man who was convicted of possession of child pornography. Never mind that public defenders don’t get to choose their clients and are bound by honor and oath to represent those defendants who are assigned to them, even if the criminal acts in the case are reprehensible.
When Kelly gave them a chance at a do-over last year, the Senate vote was the same.
Not that Kelly’s been the perfect nominator either.
In 2019, she offered up then-Judge Jeffry Jack, a former Republican legislator, whose nomination embarrassingly unraveled when biased and profane tweets about President Donald Trump and other Republicans surfaced in his Twitter feed.
Supporters of the Senate confirmation system are fond of claiming that it’s more democratic than the merit system.
But in virtually the same breath, they undercut their own argument by insisting on trying to alter the Constitution in an August primary, when more than half a million independent voters — nearly a third of Kansas voters — are largely sidelined in an election geared toward political parties choosing their nominees.
This kind of cynical tampering with our founding document for political power gain is seductive for those in power.
But it’s not a good look, now or ever.
This moment calls for political courage, not fealty to partisan interests.
When our lawmakers take office, they swear on the Bible to support the Constitution of the United States and the Constitution of the state of Kansas against all enemies.
Men and women of the Kansas Legislature, we call you to your oath.
This story was originally published April 3, 2022 at 6:25 AM.