Davis Merritt: Irrational assault on courts is a danger to all

The officeholders Kansans elected to power in Topeka want to ensure their absolute control over the institutions and people they are supposed to serve. And they think the Kansas court system is standing in the way.

Of course it is. That’s a primary duty of the judicial branch in a democracy: acting as a check on excessive power and extra-constitutional acts by either the legislative or executive branch, or, in the case of our present lockstep monolith, both.

Those in power proclaim that they are merely carrying out “the will of the people” whose votes sent them there.

That’s not true. They have assumed carte blanche to do the bidding of some of the relatively few people they happen to know, and, of course, the will of Americans for Prosperity, the American Legislative Exchange Council, the Kansas Chamber of Commerce and others with dollars and goodies to spread around.

Relations among the branches of American-style democracy are tense by design: The U.S. Constitution, and thus state ones, follow the separation-of-powers concept, which, despite the word “separation,” cements the democratic system and safeguards against legislative or executive tyranny.

Gov. Sam Brownback and his majority legislators have long-standing grievances with the Kansas court system stemming from 2005, when the court ruled that the Legislature was violating its constitutional duty of “suitable provision” for public education and ordered more spending. The court is currently considering a follow-up case that could lead to further orders to increase support.

It comes at an awkward time, because the reckless income tax cuts passed in 2012 sent the state down a fiscal blind alley.

The Legislature last week passed a gimmicky two-year “fix” for school funding that a district court suggests it may block until the follow-up case is resolved.

That potential confrontation reawakened legislative threats to limit the court’s jurisdiction, disrupt the balance of powers, gut the court’s funding and further politicize how justices are selected.

The rhetoric around those threats last week was so irrational that Kansans should be alarmed.

Rep. Scott Schwab, R-Olathe, said of the courts: “The more they get political, the more votes we get for judicial selection.”

At first, Schwab’s complaint seems to indicate, correctly, that it would be wrong for justices to act politically. But his non sequitur solution is to render the Supreme Court wholly political by making the justices subject to appointment by the governor and the Senate. In other words, “political” judges are those he disagrees with (i.e., “bad”), but judges he agrees with (i.e., “good” ) would not be acting politically. Really. He did.

Also last week, during a hearing on the judicial branch budget, Rep. Jerry Lunn, R-Overland Park, threatened a district court judge that a court order to spend more on education could lead to funding cuts for the courts.

If Brownback and his legislators think the court should butt out of school finance, they have a direct – if terribly unwise – option: propose amending the requirement for “suitable provision” out of the constitution and ask Kansas voters to approve.

Surely that would lead those legislators and the governor to a new experience: hearing the real “will of the people” loud and clear. And that’s why they won’t do it, but will continue to rely on delusional rhetoric and hints of defiance and constitutional crisis.

To what good end?

This story was originally published March 23, 2015 at 7:04 PM with the headline "Davis Merritt: Irrational assault on courts is a danger to all."