The pool of Kansas Court of Appeals nominees forwarded to Kansas Gov. Sam Brownback last week is likely to add fuel to an already expected debate in the coming legislative session about how state appeals court judges are selected.
By statute, the state’s Judicial Nominating Commission is charged with screening applicants for open Court of Appeals seats and forwarding three names to the governor, who must select from among the three. Last week, the nominating commission considered 20 applications for the court seat that will be vacated when Judge Christel Marquardt retires in January. The commission’s picks were a Stevens County district judge appointed by then-Gov. Bill Graves, a senior deputy district attorney from Johnson County and a Topeka resident who’s served as a research attorney for both of the state’s appellate courts. Among the other 17 applicants were the governor’s chief counsel, Caleb Stegall, and Sedgwick County District Judge Tony Powell, who was a leading spokesman for anti-abortion Republicans in the Kansas House before he became a judge.
According to Rep. Lance Kinzer, an Olathe Republican who chairs the House Judiciary Committee, the nominations are another indication of a selection process that makes it “virtually impossible” for prominent conservative voices like Stegall and Powell to be appointed to the court. Kinzer and others blame this on the composition of the nominating commission, which is made up of four members appointed by the governor, four attorneys elected in each of the state’s four congressional districts and a chairman elected by a statewide vote of the Kansas bar. Their rationale is that having a nominating commission with attorneys in the majority skews the body away from conservative views and nominees.
All of the commission members serve four-year terms, so any governor who serves two terms in office would have the opportunity to appoint four people to the commission, but the assumption is that even if all four of people appointed by the governor are conservative, they will be outnumbered by the attorneys, all of whom will favor a more liberal agenda. That view, of course, ignores the natural variation in political views by any group of Kansas residents, including attorneys.
The solution Kinzer proposes for this problem is to have appeals court judges appointed by the governor and confirmed by the Senate with no input from the nominating commission. Whenever the governor has the support of a majority of the Senate, that likely would clear the way for any judge the governor would appoint regardless of his or her qualifications or experience. The other option, which Kinzer said some of his colleagues favor, is to simply elect the judges, which opens the door to all kinds of influence by attorneys or other political donors seeking favor with certain judges.
The bottom line on this debate is that the current system is working fine. Voters must vote, as they did earlier this month, on whether to retain judges, which allows an avenue for incompetent judges to be removed. Any of the options being considered for changing how judges are appointed would only add more politics to the process.
This isn’t an issue that gets a lot of attention from the public — which is another reason to preserve the role of trained legal professionals in the appointment process — but it’s an issue that Kansans should monitor if, as expected, it is raised in the upcoming legislative session.