Mark Peterson: Don’t politicize picking justices

Gov. Fred Hall was the 33rd governor of Kansas, from 1955 to 1957. Hall provided the instigation for the judicial appointment system currently under threat from Gov. Sam Brownback and a judicially annoyed Legislature.

What Hall did was something that several governors had done before him, just not as flamboyantly. They, like Hall, used the governor’s judicial appointment powers to serve their political interests.

In Hall’s case, Chief Justice William Smith of the Kansas Supreme Court, an ally of Hall’s, resigned his seat. Hall saved his own voter-rejected skin by resigning, which caused Lt. Gov. John McCuish to become governor. McCuish then appointed the now-former Gov. Hall to become the new chief justice. It was called, depending on what you read, the “triple jump” or the “triple play.”

These events persuaded the Legislature and the people of Kansas that the judicial appointment system had to be depoliticized.

In 1958, the people of Kansas went to the polls to approve our current judicial appointment system. It uses a commission of nine people. Four are regionally peer-selected attorneys; four are citizens chosen by the governor – one from each congressional district; and the last member and chairman is another attorney picked by attorneys in a statewide vote.

The governor’s influence in the process is strong, both in terms of choosing nearly half the commission members, and having final say in the selection of the new appointee from the commission’s list of three nominees. At the same time, purely partisan politics is reduced, and the likelihood of pure cronyism largely eliminated.

Why the history lesson?

With Brownback’s urging, the Legislature is considering concurrent resolutions to do away with this less-political process in favor of something close to the bad old days.

One resolution proposes the governor alone nominate a Supreme Court justice with Senate confirmation. Another provides for direct election of members of the Supreme Court and Kansas Court of Appeals.

Another creates a new selection commission. The governor, the House speaker and the Senate president would each get to choose three members. The new commission would submit its choice to the governor, who would in turn make the final selection.

There’s also a resolution that, if ratified by the voters, would permit the recall of judges, just in case the public gets really upset with a judge in between constitutionally mandated retention elections.

The proposed changes significantly increase the partisanship and politics of our appellate courts.

Advocates declare these approaches more democratic and, therefore, more constitutionally defensible. But what is the role of the courts in our system of separated powers and checks and balances?

The courts are the least popularly controlled branch of government for a reason. Their job is to hear the complaints of citizens, restrain the power of government, and defend the rights of the accused and the aggrieved. In those capacities, our interests are better served by institutions less susceptible to the volatile public, the anger of thwarted governors, and the spite of legislators irritated by judges.

Kansas voters should be reminded, vividly, that 60 years ago they had politically controlled courts. Kansans had the wisdom to fix the system in 1958. Now, as the Legislature has eliminated the existing school finance formula, replaced it with block grants, and challenged the state’s courts on the constitutional question of school funding adequacy, there’s little to suggest that political behavior has undergone a virtuous transformation in the nearly six decades since.

This story was originally published March 20, 2015 at 7:02 PM with the headline "Mark Peterson: Don’t politicize picking justices."