Analysis: In debate over court, history’s ‘Triple Play’ worth remembering

Topeka ? After nearly five decades, the “Triple Play” is all but forgotten, but that ancient political scandal is worth remembering as legislators consider requiring Senate confirmation for Kansas Supreme Court justices.

The proposal to modify justices’ selection is a response to recent court decisions striking down the state’s death penalty law and ordering legislators to improve education funding. Some Republicans complain the court now has an activist streak and believe Senate confirmation of members would make it more accountable.

The state embraced the current selection system — bypassing both partisan elections and legislators — because of the “Triple Play.” In January 1957, both an ailing Supreme Court justice and an outgoing governor resigned, and the new governor appointed his predecessor to the bench.

Kansas voters then amended the state constitution to insulate the court from politics.

Now, some legislators question how well a previous generation succeeded and wonder ironically whether the existing system gives the governor and a few others too much control.

“We just think we ought to acknowledge there’s politics in the process and give people more input into it,” said Senate Majority Leader Derek Schmidt, R-Independence.

Schmidt backs a proposal to add Senate confirmation as a final step to the existing selection process. Twenty-eight senators are sponsoring the measure, one more than the two-thirds majority necessary to adopt a constitutional change in the 40-member chamber.

Like other legislators, Schmidt’s desire for change stems from the Supreme Court’s decision in December striking down the capital punishment law.

The court’s 4-3 majority said the 1994 law is unconstitutional because of a provision governing how juries weigh evidence for and against imposing a death sentence.

Other legislators grumble about the court’s decision last month on education funding, in which it said the state isn’t fulfilling a constitutional duty to provide a suitable education for all children. The court gave legislators until April 12 to provide additional dollars and distribute its aid to school districts more fairly.

Summary of a proposed amendment to the Kansas Constitution to change how Supreme Court justices are selected:¢ The nonpartisan nominating commission that screens applications for appellate court positions would remain. It would continue to have two members from each of the state’s four congressional districts, one chosen by attorneys, the other by the governor from the general public. The chairman would continue to be chosen by attorneys statewide.¢ The nominating commission would continue to submit the names of three finalists to the governor, who would have 60 days to make an appointment.¢ In a new step, the governor would submit the appointment to the Senate, which would have 30 days to vote on its confirmation. The Senate would be required to convene even if the Legislature was out of session.¢ If the Senate didn’t vote within 30 days, the appointment would be confirmed.¢ If the Senate rejected an appointment, the nominating commission would submit the names of three more finalists to the governor, with the rejected appointee ineligible.¢ Justices would still stand for retention on the bench every six years.

“It’s definitely a more activist court,” said Sen. Susan Wagle, R-Wichita.

Activism is, of course, in the eye of the beholder.

“We need to take a much longer viewpoint and not just react in knee-jerk fashion to a couple of decisions that are unpopular,” said Senate Judiciary Committee Chairman John Vratil, R-Leawood, who is not a sponsor of the measure.

Currently, a nine-member nominating commission screens applicants for appellate court positions. Four commission members are members of the general public appointed by the governor, and the others are chosen by attorneys.

The commission nominates three finalists, and the governor makes the appointment. Justices then stand for retention once every six years.

Voters adopted the system in 1958. Previously, justices were elected to six-year terms, with the governor making appointments when vacancies occurred.

That appointment power was unfettered, as the events of January 1957 demonstrated.

Chief Justice William Smith, a power in the state GOP for three decades, was bedridden in a Topeka hospital. Gov. Fred Hall, at odds with conservatives within his own Republican Party, had been denied renomination in 1956.

Smith resigned on Jan. 3. Hall then resigned, just eight days before his term expired, making Lt. Gov. John McCuish governor for those eight days. Minutes after taking office, McCuish appointed Hall to the court.

An angry Topeka Daily Capital editorial called it “political trickery of a very low order” and proclaimed: “Kansans will generally resent the scheming that was hidden behind a curtain of dark secrecy.”

Wagle, Schmidt and other legislators who support their proposed change contend the process created in the wake of the “Triple Play” is itself too secretive. A governor’s appointments to the court are virtually for life, given that no justices has ever failed to win retention by less than a two-thirds majority.

“Our Supreme Court justices are seated with very little press, without many questions and with no public input,” Wagle said.

Others say the change could inject more politics into a selection system designed to avoid it — a view held by Democratic Gov. Kathleen Sebelius.

“I hope they don’t tamper with a system and add a political layer to what has been, I think, a system to ensure high-quality justices,” she said.