Topeka Sam Brownback's spokeswoman said Thursday that the U.S. senator and Republican nominee for Kansas governor questions whether the process for picking new state Supreme Court justices is constitutional.
Brownback's views are in line with a federal lawsuit alleging that the selection process violates voters' rights by allowing attorneys to control who gets appointed to the high court. Attorneys chosen only by fellow attorneys make up a majority of the commission screening applications for Supreme Court vacancies.
The selection process is an important issue for some of Brownback's fellow conservative Republicans, who've been upset in recent years by Supreme Court rulings on abortion and education funding. They argue that the court isn't accountable enough to voters because of how justices are picked.
The GOP nominee doesn't intend to draft a plan for changing the process, spokeswoman Sherriene Jones-Sontag said, but "He's going to continue to talk with those who are interested in making a change."
Brownback's Democratic opponent, state Sen. Tom Holland, has said he doesn't see the need to make any changes in the selection process. He and others, including some GOP moderates, believe it is insulated from partisan politics.
Holland campaign manager Dana Houle questioned Brownback's judgment on such issues by noting his past support for Phill Kline, an anti-abortion Republican, as a nominee for U.S. attorney for Kansas.
In 2001, Brownback described Kline as an "outstanding" potential appointee, but Kline withdrew and instead ran for Kansas attorney general in 2002, winning narrowly. Kline became a national figure for investigating abortion clinics, but the controversy surrounding his actions led to his defeat in 2006.
Houle said of Brownback: "Now he wants to drastically change the way judicial appointments are made in Kansas without telling anybody specifically what he would do. This raises serious questions about Brownback's true agenda and leaves us to wonder what he's hiding."
Judicial selection is also a compelling issue for conservatives because Democratic Gov. Mark Parkinson will fill a vacancy on the Supreme Court before leaving office in January, assuming there's no federal court intervention. Robert Davis retired as chief justice on Aug. 3 and died the next day.
Nine lower-court judges and four attorneys have applied to fill the vacancy. The nine-member Supreme Court Nominating Commission plans to interview them Sept. 27 and 28 and send the names of three finalists to Parkinson.
Five of the nominating commission's nine members are attorneys elected by fellow attorneys.
Parkinson will have 60 days to pick one of the three finalists. If he refuses to choose one of them, the decision will fall to new Chief Justice Lawton Nuss. The Legislature has no role.
Voters decide every six years whether a justice remains on the bench. However, since Kansas switched from the partisan election of justices in 1960, no justice has been removed.
Thirteen states have such a system, with no role for legislators, according to the American Judicature Society. But Kansas is the only state in which attorneys chosen by other attorneys are a majority of the panel screening potential appointees.
Four voters filed the lawsuit challenging the Kansas system. Their lead counsel is James Bopp Jr., a Terre Haute, Ind., attorney who also represents Focus on the Family and the National Right to Life Committee.
Jones-Sontag said the issues in that lawsuit are similar to those in a federal lawsuit that in the 1990s forced Kansas to change how its secretary of agriculture was chosen.
Farm groups used to pick a Board of Agriculture, which then picked the secretary. Now, the governor makes the appointment, subject to Senate confirmation.
Environmentalists attacked the old system, arguing that it stripped many Kansas voters of their right to participate in selecting an official with broad regulatory powers.
But last year, a federal judge in Alaska dismissed a legal challenge on similar grounds to that state's judicial selection process, which is similar to Kansas' system.