In the past several weeks, a bill has been introduced into the Kansas Legislature to require that all nominations to the Kansas Supreme Court be confirmed by the Kansas Senate. While I have nothing against such a confirmation process in general, I find myself opposed to the current proposal nonetheless. My opposition to the proposed confirmation process rests on several bases.
Proponents of the legislation have made two principal arguments in favor of this change. The first, which, in my opinion, is the more honest of the two, is that there are a number of members of the Legislature unhappy with recent decisions of the Supreme Court, particularly the decision striking down the Kansas death penalty statute as unconstitutional and the decision upholding Judge Bullock's school finance decision. In both cases, of course, the courts directly criticized the work of the Legislature.
The second, and to my mind far less honest, reason given by proponents for enacting this legislation is that this would bring the Kansas process of judicial appointment into line with the process followed in the appointment of justices to the U.S. Supreme Court.
My first objection to this legislation is simple: there has been no showing, nor even moderately convincing argument, that either of these two recent decisions were wrong as a matter of Kansas constitutional law. On the contrary, those who support this legislation seem to view it as a "punishment" of the Supreme Court and as a way of giving the Legislature a means of controlling future Supreme Court decisions. This is both unwise and rather foolish.
First, if the intent of the legislation is to further politicize the judicial appointment process, this is a bad idea. Americans have sat through a number of hotly contested partisan judicial confirmation hearings at the national level, including those of Judge Robert Bork and Justice Clarence Thomas. Do we want to have the Kansas Legislature spend the time and money on contested partisan judicial confirmation hearings that is spent on the national level?
Our legislative sessions are already partisan, often to the point of incivility. Do we need to make them even more difficult? Do we want to risk losing highly qualified potential justices because they are unwilling to submit themselves to such a process? Further, there is much evidence at the federal level to show that justices, once appointed, often become quite independent and decide cases in ways far different from what their supporters expected.
Justice Hugo Black and Chief Justice Earl Warren are just two examples of justices on the U.S. Supreme Court who were far different on the bench than their supporters in their confirmation hearings ever imagined possible. It seems quite likely that confirmation hearings at the state level would have no more success in predicting future judicial behavior than have federal hearings.
Third, in both cases that seem to have sparked this proposal, the fact of the matter is that the Legislature has done a bad job and the Supreme Court has called them to task. If the Legislature wants a death penalty statute, then they ought to draft it properly. If they want to do their constitutional duty, then they ought to do what the state constitution requires.
If they don't like that, then they need to propose a constitutional amendment. Punishing the Supreme Court for pointing out the Legislature's failings seems rather wrongheaded to me. In short, I would suggest that requiring legislative confirmation of appointments to the Kansas Supreme Court will have high costs and may not even achieve the ends the supporters of this legislation desire.
The second reason given for this proposed change is that the federal government does judicial appointments in this way. This I find to be rather ironic. Since when does the Kansas Legislature enact laws simply because the federal government does something? Is this a new bizarre definition of states' rights?
I have always subscribed to the notion that the old cliche "if it ain't broken, don't fix it" was sensible. To my mind, our judicial appointment process works and works well. We have very good Supreme Court justices. I'm sure that they issue opinions with which people on both ends of the political spectrum disagree. In the decade during which I have followed the Kansas Supreme Court I have certainly not noticed a "liberal" trend in their decisions. I know of no legal scholars who believe that this is the case.
To change our traditional method of appointing justices simply because a few legislators -- or even many legislators -- are unhappy with a few decisions criticizing legislative actions is madness. The bottom line seems simple: If the Legislature doesn't like these decisions striking down their actions, then let them pass legislation that they do like and that also meets constitutional requirements. That would be a far more prudent way to deal with these issues.
-- Mike Hoeflich, a professor in the Kansas University School of Law, writes a regular column for the Journal-World.