Archive for Tuesday, February 8, 2005

Senate studies requiring confirmation of Supreme Court judges

Legislators unhappy death penalty struck down

February 8, 2005

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— Upset by a state Supreme Court ruling that could let several convicted killers escape a death sentence, some Republicans want to require Senate confirmation of nominees to the state's highest court.

Senate Majority Leader Derek Schmidt, R-Independence, offered no details about the idea Monday, other than to say lawmakers are drafting a proposal and that sponsors are likely to introduce it this week.

Currently, a nine-member commission screens applications for openings on the Kansas Supreme Court and the Court of Appeals, then forwards three nominees to the governor, who makes appointments.

Supporters said Senate confirmation of justices would discourage governors from making appointments based solely on politics or ideology. Also, they said, senators should be involved in such important appointments.

"It's about making the government better," said Sen. Phil Journey, R-Haysville, a sponsor.

But Gov. Kathleen Sebelius said having the commission screen applications insulated the Supreme Court from politics.

"To add another, political layer on top of that may be jeopardizing the independence of the judiciary," she said during a brief interview.

Word of the proposed change came as the Senate Judiciary Committee forwarded rival death penalty bills to the chamber for debate. One bill would fix the flaw in the state's death penalty law identified by the Kansas court's 4-3 majority. The other would strike the law from the books.

The state Supreme Court struck down the capital punishment law over a provision on how juries weigh evidence for and against sentencing a defendant to death. The law says if the evidence is about equal, a jury must choose death, which the court's majority said represented cruel and unusual punishment.

The decision removed six convicted murderers from death row. A seventh, Gary Kleypas, already had his sentence overturned and was awaiting resentencing. Unless the U.S. Supreme Court overturns the Kansas Supreme Court's decision, those men will escape execution.

That prospect led Schmidt to suggest Monday that the Legislature might be recalled into a special session if it failed to make any changes to the death penalty law before adjourning as scheduled in early May.

Some prosecutors worry that if the Legislature fixes the flaw, the U.S. Supreme Court will consider the issue addressed and decline to hear the state's appeal. Others are concerned that if legislators wait, and the U.S. Supreme Court still doesn't intervene, defendants committing crimes in the meantime can't be sentenced to death.

Schmidt said the first special session since December 1989 would lessen the problem. But he wants to limit a special session -- which legislators can call themselves -- to only capital punishment.

"I don't think you can" do that, said Senate Minority Leader Anthony Hensley, D-Topeka. "There'd be no limit."

Hensley said he had been approached about sponsoring the measure to require Senate confirmation of state Supreme Court justices but wasn't sure about how he felt. He said confirmation battles about U.S. Supreme Court justices made him hesitant.

"It often becomes a political football," Hensley said. "I'm not sure we want to open that up in the state of Kansas."

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