Topeka — U.S. Sen. Sam Brownback’s “Road Map for Kansas” doesn’t address hot-button social issues such as abortion or gay rights, but the Republican nominee for governor’s comments about the Kansas Supreme Court hint at his conservative leanings.
The issue is how the court’s justices are selected, arising recently because one of the court’s seven positions is vacant, and Democratic Gov. Mark Parkinson is expected to fill it before he leaves office in January. Brownback and his aides have made only a few comments, but they’re enough to show that Brownback is firmly aligned with fellow GOP conservatives.
Spokeswoman Sherriene Jones-Sontag said last week that Brownback questions whether the current process is constitutional, a concern raised by a federal lawsuit alleging the process unfairly gives too much power to attorneys and therefore violates other Kansans’ rights. Brownback said last month that he was working on a proposal, but Jones-Sontag said only that he’ll keep talking to groups interested in the issue.
In recent years, judicial selection has been an important issue mainly for conservative Republicans who’ve been upset with Supreme Court decisions on abortion and education funding. They contend a lawyer-dominated selection process, with no involvement by the Legislature, results in left-of-center justices.
“If you’re not a member of the club, it’s awfully hard not to get through the club,” said Stephen Ware, a University of Kansas law professor whose assessment of the process as undemocratic and insular resonates with conservatives. “Lawyers nationwide tend to be more liberal as a whole than the general population.”
Brownback is favored to win the governor’s race over Democratic nominee and state Sen. Tom Holland. But that assessment assumes GOP moderates are comfortable with Brownback — or that Republicans of all stripes are hungry enough to recapture the governor’s office after eight years that Brownback’s views on social issues won’t cause moderates to bolt.
One of Holland’s goals is to remind Republican moderates why they’ve been uneasy about Brownback in the past. Holland and his aides view Brownback’s comments on judicial selection as a signal to conservatives that he’s with them and his lack of specificity as an attempt to keep moderates from catching on.
“Sam Brownback has been in Washington long enough to know all the right code words to give special interests the signal they’re looking for, while Kansans are left to figure out his real agenda,” Holland campaign manager Dana Houle said. “Kansans cannot afford to let a Washington politician, who hides his real agenda, to disrupt decades of moderate leadership in the Kansas governor’s office.”
But Jones-Sontag said Brownback isn’t proposing a plan on judicial selection because he’ll concentrate on the economy if he’s elected governor.
“The No. 1 thing is going to be growing the economy,” she said.
Even so, the past two decades, featuring annual battles over abortion and dust ups on other social issues almost as regularly, show that social issues will be an important part of the political agenda, no matter how much fiscal issues dominate. That means judicial selection is likely to crop up as an issue.
How it works
Justices are appointed by the governor after the Supreme Court Nominating Commission screens applications and picks three finalists. The governor must pick one of the three; if he or she refuses, the choice falls to the Supreme Court chief justice. There is no legislative confirmation.
Thirteen states have a similar system, but under the Kansas Constitution, five of the nominating commission’s members, including its chairman or chairwoman, must be attorneys, and those attorneys are selected only by other attorneys. No other state mandates that a majority of its screening committee be attorneys picked by other attorneys.
In Kansas, voters determine every six years whether a justice stays on the bench, but none has failed to win retention since the state switched from partisan elections in 1960.
Best ‘long-term’ system
The process for selecting Kansas Supreme Court justices has been criticized occasionally over the past quarter-century, as western Kansas residents grumbled that their region has been underrepresented among finalists for the high court or minority groups complained about a lack of diversity among finalists. But more recently, Democrats and moderate Republicans generally have said the process works well by keeping politics out.
Ware said defenses of the status quo strike him as ironic, given that decades ago, liberals were at the forefront of pushing for representation in state legislatures on the “one-man, one-vote” principal.
As critical as Ware is of Kansas’ process, he agrees the debate shouldn’t be about individual court decisions or justices. He said policy makers should focus on creating the system that “works best, on average, in the long-term.”
Ware supports having governors appoint justices and the state Senate, confirm them. He said such a system is likely to make the Supreme Court accountable to voters but still insulate justices from electoral politics.
“You want a court that reflects where a state is as a whole,” Ware said.
But Democrats and many GOP moderates are suspicious of attempts to change the selection process because conservatives are currently the most vocal advocates. For example, the lead attorney in the federal lawsuit against Kansas’ process is James Bopp Jr., of Terre Haute, Ind., whose other clients include Focus on the Family and the Right to Life Committee.
It’s also why Brownback’s comments on the issue, as relatively circumspect as they’ve been, hint at his conservative views on social issues.