Wichita — A federal judge on Wednesday tossed out a constitutional challenge to the way Kansas nominates its appellate justices, ruling that it’s not his job to weigh in on the debate over whether participants in the process should be popularly elected.
The decision by U.S. District Judge Monti Belot comes just two days after the governor filled a vacancy on the Kansas Supreme Court. It also comes a day after voters retained, by margins of 60 percent or better, all four Supreme Court justices who were on the ballot — a fact Belot noted in making his ruling.
The judicial nomination dispute is expected to resurface in the Legislature, where anti-abortion forces are coalescing in a move to change the state Constitution which set out the process.
In recent years, judicial selection has been an important issue mainly for conservative Republicans upset with Kansas Supreme Court decisions on abortion and education funding. They contend a lawyer-dominated selection process results in liberal-leaning justices.
Belot wrote in a 13-page ruling that the court, like the 9th Circuit in a similar case, recognized this as one of several challenges seeking to have judicial selection participants popularly elected or appointed by a popularly elected official. Belot noted that it’s a somewhat “hot topic” now.
“It is not this court’s job to weigh in on the debate except to point out that Kansas voters approved the present system and the absence of evidence that Kansas’ system has not worked and will not continue to work to ensure that qualified individuals are appointed to the Kansas Supreme Court and the Kansas Court of Appeals,” he wrote.
At issue is a process created more than a half-century ago that uses a nine-person nominating commission to fill vacancies on the Kansas Supreme Court and appellate courts. Lawyers elect five of those nine commission members.
The lawsuit in Kansas was filed by Indiana-based attorney James Bopp Jr., who last year represented three Alaska voters who challenged a similar selection process in that state. A federal judge dismissed the Alaska lawsuit in a decision that has been appealed.
Bopp did not immediately return a message left on his cell phone for comment.
Kansas Attorney General Steve Six said in a written statement that the Kansas method for filling vacancies on the appellate courts has served the state well for decades.
“Our constitutional process was put in place to fix a system that was broken and I’ve yet to see a legitimate reason to alter something that has given Kansas an experienced and professional judiciary,” Six said.
When a judicial vacancy becomes available in Kansas, the commission chooses candidates whose names are passed on to the governor. If the governor refuses to appoint one of the finalists, the choice falls to the state Supreme Court’s chief justice.
The four plaintiffs named in the lawsuit filed a legal challenge claiming that system is unconstitutional because it gives lawyers too much power and violates the voting rights of other residents. They sued the attorney-members of the nominating commission and the Kansas Supreme Court’s clerk.
The judge entered a summary judgment in the case on the defendants’ behalf.
Belot in September rejected a request by the plaintiffs for a preliminary injunction, refusing to block Kansas from filling a vacancy on its state Supreme Court.
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