Topeka Two appellate judges and a trial judge were named Tuesday as finalists for an opening on the Kansas Supreme Court, even while a federal lawsuit challenges how the state selects members of its highest court.
The Supreme Court Nominating Commission announced it narrowed 13 applicants to state Court of Appeals Judges Nancy Caplinger and Tom Malone and Lyon County District Judge Merlin Wheeler.
Gov. Mark Parkinson, a Democrat leaving office in January, has until Nov. 27 to make the appointment. The high court has a vacancy because of the Aug. 3 retirement of Chief Justice Robert Davis, who died the next day.
Four Kansas voters are suing the nominating commission in federal court, alleging their rights are being violated because lawyers unfairly dominate the selection process. But a federal judge refused two weeks ago to issue an order blocking attorney-members of the nominating commission from participating.
“We’ll go ahead and continue with the process as we normally would,” said Parkinson spokeswoman Amy Jordan Wooden. “Until a court of law tells us otherwise, we’ll still proceed.”
James Bopp, a Terre Haute, Ind., attorney representing the four Kansas voters, did not return a telephone message to his office. Bopp’s other clients include the conservative group Focus on the Family and the National Right to Life Committee.
Kansas is among 13 states in which a governor appoints Supreme Court justices from finalists selected by a nominating commission, with no role for legislators.
Voters decide every six years whether a justice remains on the bench, but no Supreme Court member has been ousted since Kansas switched from partisan elections in 1960.
Conservative critics argue that the selection process results in a relatively liberal court that’s not accountable to voters. Supporters say the process removes politics from judicial appointments.
Kansas is the only state in which attorneys, chosen by other attorneys, are a majority of the nominating commission.
U.S. District Judge Monti Belot has ruled that the setup’s constitutionality is a public concern but it doesn’t outweigh the public interest in preventing “indefinite vacancies” on the state’s appellate courts.
Malone and Caplinger were appointed to the Court of Appeals by Gov. Kathleen Sebelius, a Democrat — Malone in April 2003 and Caplinger, in October 2004. Both are standing this year for retention to the Court of Appeals for four-year terms.
Caplinger, 50, of Topeka, served as a federal prosecutor for nine years and was director of the division handling appeals for the U.S. attorney’s office in Kansas. Malone, 56, of Wichita, is a former Sedgwick County district judge.
Wheeler, 58, of Emporia, was appointed to the district court bench in 1990 by Gov. Mike Hayden, a Republican. Wheeler has been chief judge for the 5th Judicial District of Lyon and Chase counties since 1997.