Archive for Sunday, February 12, 2006

Acting in anger?

Legislators shouldn’t change the Kansas Supreme Court appointment process as a way to retaliate for unpopular court decisions.

February 12, 2006


It's usually a good policy to avoid making important decisions when you're angry about something.

That was the point former Kansas Supreme Court Justice Fred Six was making last week when he spoke to the Kansas House Judiciary Committee, which was considering legislation that would drastically change the way the state appoints justices to its highest court.

Supreme Court justices now are appointed through a merit selection process. A nominating commission made up of members of the Kansas Bar considers applicants and presents the names of three qualified finalists to the governor, who picks one. That justice then faces a statewide retention vote every six years. Term limits prevent any governor from having undue influence over the court, and retention votes provide a way for justices to be removed if their actions warrant it.

The proposed constitutional amendment under consideration would replace that system with a process that includes appointment by the governor and Senate confirmation of justices with periodic retention votes. A companion bill would apply the same appointment process to the Kansas Court of Appeals.

Fred Six, a Lawrence resident and respected jurist, seemed to be telling the committee it was trying to solve a problem that didn't exist. Merit selection is a "road-tested : vehicle of the Midwest," he said, and the effort to dump it in Kansas apparently is driven by anger over two court decisions last year that ordered additional spending for Kansas schools and declared the state's death penalty law unconstitutional.

"If those two cases never existed," he asked the panel, "would we be in this room now?"

The answer to that question certainly appears to be "no." An effort to change the appointment process was made in last summer's special session to address school finance. At that time, a number of legislators even were promoting the idea of defying the school ruling because they believed the court had overstepped its powers by ordering the Legislature to appropriate money.

A number of measures being considered in this session address that issue directly. One slaps the court by emphasizing the constitutional provision that only the Legislature can appropriate money and decide how money is spent on education. Another prevents the courts from closing schools to enforce any school finance order.

Yet another puts forward the terrible idea of having justices elected in statewide nonpartisan elections. Although 13 states elect their justices, there have been some notable cases of donors making large donations to candidates who could influence pending decisions that involve the donors.

We agree that this is a solution without a problem. Kansas would be the first state to scrap a merit selection plan for its highest court. Anger over a couple of rulings doesn't justify this switch. Cooler heads should prevail.


Use the comment form below to begin a discussion about this content.

Commenting has been disabled for this item.