Topeka Last summer, the Kansas Supreme Court upset a lot of legislators when it ordered them to spend a specific amount of additional money on public education. There was talk about payback and reining in what many saw as a runaway judiciary.
During the special session to meet the education mandate, lawmakers tried but failed to pass proposed constitutional amendments targeting the court. Supporters vowed to be back this session.
On Wednesday, the House Judiciary Committee considered the most drastic judicial change offered this session: a proposed constitutional amendment dumping the merit selection plan for picking Supreme Court justices and replacing it with appointment by the governor and Senate confirmation, plus periodic retention votes by the citizens.
The proposed amendment needs a two-thirds majority of the Legislature to put it on the ballot; voters then must ratify it to become part of the constitution. If that happened, Kansas would be the first state in which voters scrapped a merit selection plan for the state's highest court. A companion bill would do the same thing for the Court of Appeals.
Merit selection started in Missouri in 1940 and varies somewhat in each of the 23 states using it. In Kansas, a nominating commission considers applicants, then presents the governor with three finalists from which to pick one. Justices face a retention vote every six years by the citizens.
Like many lawmakers, committee chairman Mike O'Neal, R-Hutchinson, is critical of the court's rulings last year on school finance and declaring the death penalty unconstitutional. Asked when the committee will vote on the bill, he said, "If we do, it'll be in two weeks."
As for the proposals, he said, "I'm not necessarily convinced we need to change this."
Pushing the idea was Rep. Lance Kinzer, who said his proposal is modeled after the federal system in which the president picks jurists, who must be confirmed by the Senate.
"The governor should have this same authority, subject to review by the Senate to avoid cronyism or other abuse of power," said Kinzer, R-Olathe.
"The current system is intended to heighten confidence in the judiciary by isolating it from political influence. I would contend that in reality this isolation serves to exacerbate public frustration with an alienation from a process they see as insular and elitist," he said.
Urging the committee to reject the proposal was former Supreme Court Justice Fred N. Six, who suggested the push for change was prompted by the school finance and the death penalty rulings.
"What is the engine driving all of us? I think it has two new pistons," he said. "If those two cases never existed, would we be in this room now?"
He said the current system has been around since 1958, voted in by Kansans disgusted with a governor who resigned so he could be appointed to the Supreme Court by his successor.
"It's road-tested. It's the vehicle of the Midwest," Six said.
Abolishing merit selection isn't the only idea floating in the Legislature this year.
The Senate has on its debate calendar a proposal to add Senate confirmation to the current system, and the measure could be brought to a vote anytime the leadership wants to bring it up.
Two proposed amendments await a House Federal and State Affairs Committee hearing. One calls for justices to be elected in statewide nonpartisan elections, which is done in 13 states. The other prevents courts from closing schools to enforce any order dealing with school finance.
Another proposal in the Senate Judiciary Committee makes clear only the Legislature can appropriate money, along with another saying how money is spent on education is determined solely by the Legislature.