Topeka — The justices of the Kansas Supreme Court haven't been making many friends lately, certainly not among legislators. First, they knocked down the state's death penalty, then demanded the state spend more money on education.
The reaction at the Capitol to the unpopular orders? A proposed constitutional amendment requiring Senate confirmation of those who would sit on the state's highest court -- an idea that's found backers in some states where legislators have found themselves upset with the actions of the third branch of government.
"We are seeing across several states and the federal government efforts to limit judicial independence. There is a general perception that when courts make rulings counter to prevailing political sentiments, they are somehow not doing their job," said Rachel Caufield, a Drake University politics professor and research coordinator for the American Judicature Society.
For the past 45 years, Kansas justices have been chosen by "merit selection" -- designed explicitly to keep politics out of the process. A nonpartisan commission picks three finalists for jobs on the high court, leaving the final choice to the governor.
Voters decide every six years whether a justice remains in office, and no justice has ever failed to receive a two-thirds majority. Similar approaches are used for initial selections of justices in 23 states and for interim appointments in seven others.
That the governor is involved raises the ire of some conservatives, who don't think Democratic Gov. Kathleen Sebelius should have a free hand in shaping the seven-member court of a state that's predominantly Republican. But court's recent decisions are driving the proposed changes.
In December, Kansas justices struck down the death penalty in a state where support for capital punishment is widespread. The ruling spared six on death row, including brothers Reginald and Jonathan Carr, who killed five people during a brutal Wichita crime spree in 2000.
A week before the Legislature convened in January, the court said the Legislature had failed in its "constitutional duty" to provide a suitable education for Kansas students, giving legislators an April 12 deadline to respond with a plan that must include spending more money.
"I'm concerned that the tone of some recent decisions has raised real ire in the Legislature and the countryside and we are wise to look for a measured response that makes sense," said Senate Majority Leader Derek Schmidt, R-Independence. "I'm concerned that if we don't do anything, the lid will blow off the powder keg eventually."
The measured response: subjecting the justices to Senate confirmation. Senate leaders say such a constitutional amendment has broad support and could come up for a vote next week. Adoption by the Legislature would put the proposal on the statewide ballot in November 2006.
Meanwhile, the House has its own plan, a proposed amendment requiring nonpartisan elections for justices, something done in 13 states.
"The idea of merit selection is to squeeze politics out of the judicial selection process to the extent that is feasible to do so," said Allan Sobel, the executive director of the American Judicature Society, which created merit selection in the 1930s. "To call for Senate confirmation is to throw politics back into the mix in a very substantial way."
But University of Pennsylvania law professor Stephen Burbank said unless senators try to influence court decisions, justices should not feel that a confirmation unduly curtails their independence. Seven states with merit selection of justices now require Senate confirmation, and Connecticut requires approval by the House and Senate.
Even so, Burbank said, lawmakers should think twice before making changes.
"If it turned out that this was a short term reflection of disagreement with a few decisions in the recent past, it probably would be a mistake," Burbank said.
The reaction of Kansas lawmakers to its court's unpopular decisions isn't uncommon in other states that use merit selection. Some Missouri lawmakers want to add Senate confirmation, while others have proposed taking away the power of the courts to determine public school funding. Neither appears to have much political traction.
"If they can remove jurisdiction from one thing, there is no reason why they couldn't do it with everything and not even have courts," said Kansas City, Mo., attorney Joe Whisler.
On Thursday, the Arizona Senate passed and sent to the House a proposed constitutional amendment to give senators the power to reject a governor's judicial appointments.
Indiana senators passed a confirmation plan, but it faces a doubtful future in that state's House. In the South Dakota Legislature, a Senate confirmation plan died this year. In Wyoming, a similar proposal failed to clear a House committee.
"There is this idea that judicial independence is bad because it's supposed to protect bad judges, but in reality judicial independence is about protecting the public," Caufield said. "No judge should ever be beholden to public opinion. They should be beholden to the law."