Topeka — The Kansas Supreme Court was on trial Monday before a legislative committee considering whether to require Senate approval of justices to the state's highest bench.
On one side were several lawmakers, Atty. Gen. Phill Kline and the father of a murder victim, who said the court had lost its bearings when it recently overturned the Kansas death penalty.
"Where is the justice in this injustice?" asked Roger Kemp, whose 19-year-old daughter's accused murderer may escape the death penalty because of the court's decision.
On the other side were attorneys and former state Supreme Court Justice Fred Six, of rural Douglas County, who argued the court needed to remain independent without fear of political retribution from other branches of government.
"The Kansas judicial vehicle has been running well," Six told the Senate Judiciary Committee. "It hasn't blown a gasket or run out of gas."
Committee Chairman John Vratil, R-Leawood, said the committee might vote on the proposed constitutional amendment as early as today. Changing the state constitution requires a two-thirds majority in the House and Senate, and then approval by voters statewide.
Senate consent
The amendment would require state Senate approval of any justice being appointed to the seven-member court.
Currently, a nominating commission screens applicants for vacant positions and then forwards three nominees to the governor, who picks one. Justices are subject to retention elections every six years.
But opponents of the process say it is too secretive and controlled by attorneys who make up a majority of the nominating commission.
"The people of Kansas have no say who is selected for these important positions," Sen. Susan Wagle, R-Wichita, said.
Sen. Derek Schmidt, R-Independence, said the Senate should be able to provide "checks and balances," and decide which "judicial philosophy prevails."
But anger about the state Supreme Court decision that overturned Kansas' death penalty fueled much of the antagonism with the court.
Kemp, of Leawood, is the father of Ali Kemp, whom he found strangled in 2002. He said his daughter's attacker might never face the death penalty because the court "played Scrabble with words."
In a December decision in an unrelated case, the court ruled 4-3 that the state death penalty law was unconstitutional because of the way it required juries to weigh circumstances before them.
Under the law, juries can weigh the heinousness of the crime against the background of the defendant, such as if the killer was abused as a child. If the factors weigh equal, then the jury must assess the death penalty. A majority of the court said that was wrong.
Kline contended the court had changed its mind since a 2001 case simply because the members of the court changed.
But in 2001, the court, in another 4-3 vote, found the same provision unconstitutional, though it said it could be remedied with new instructions to a jury.
Kline also attacked the judiciary in general as an advocate for the recent school finance lawsuit. The state Supreme Court has given lawmakers until April 12 to increase school funding and provide a more equitable finance system.
Court defenders
But defenders of the court said in both the death penalty case and the school finance case, the court fulfilled its duties by interpreting the law and then telling the Legislature to fix the problems.
"They need to be free and independent," Wichita attorney Jack Focht said.
He also said it was wrong to compare the state proposal with the federal process of U.S. Senate confirmation of justices to the federal courts.
The federal judicial appointments are for life, and the president can nominate anyone he wants instead of making a selection from a group recommended by a nominating commission, he said.
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