Gov. Sam Brownback said this week “that one of the key functions of governor is picking judges.” He’s right. But he has given Kansans further reason to doubt his ability to handle that responsibility with his use of the Carr brothers case in an appalling campaign ad and his extraordinary call for two Kansas Supreme Court justices to be ousted.
About that awful ad: The Supreme Court did not let these murderers of five Wichitans “off the hook.” Finding problems with jury instructions and the brothers’ combined sentencing proceedings, the justices vacated their death sentences in July but upheld one count of capital murder each. They remain in prison; the state is challenging the decision at the U.S. Supreme Court level. Democratic gubernatorial candidate Paul Davis had nothing to do with the case. And who would capitalize on such horror and anguish for political gain?
Regarding the governor’s poor decision to wade into whether Kansans should retain Justices Eric Rosen and Lee Johnson: Voters should consult a nonpartisan, informed source, the 2014 Judicial Review Survey. Of those surveyed, 83 percent of judges and 67 percent of attorneys strongly recommended retaining Rosen; 69 percent of judges and 59 percent of attorneys offered a strong endorsement of Johnson.
Justices are best assessed on their knowledge of and application of the law, not on whether their decisions are popular and they have the right partisan views and connections.
Ideology also should be irrelevant to judicial selection. Yet by claiming Monday that Davis “will pick liberal judges,” Brownback implied that he values a judicial nominee’s conservative ideology above all.
The governor already succeeded in taking control of the selection process for the Kansas Court of Appeals, whose new judges he now freely and secretly chooses with an all-but-assured confirmation vote of the state Senate. He would like to have the same power to pick Supreme Court justices.
And every legislative session brings new attempts by the governor and lawmakers to intimidate the Supreme Court and use underfunding and policy reforms to undermine its authority. Never mind that the judiciary is a coequal branch of government with a crucial job to do on behalf of Kansans, and that such partisan-driven meddling threatens the independence, impartiality and functionality of the courts.
In the October issue of the Journal of the Kansas Bar Association, Chief Justice Lawton Nuss discussed how the Legislature’s recent changes in how courts are funded are falling short, because new and increased court fees are generating less revenue than anticipated. “Adequate funding is necessary to maintain the belief of the people ... in their justice system,” the chief justice wrote.
Will the governor and Legislature respond with sufficient resources? Or will the threat to the judiciary grow?
Voters render their verdict next week.
For the editorial board, Rhonda Holman