Archive for Friday, August 30, 2013

Notable Kansans weighing in against new appellate court selection process

August 30, 2013


— Three notable Kansans this week have criticized the process that Gov. Sam Brownback used to appoint his chief counsel to the Kansas Court of Appeals.

Former Kansas Sen. Nancy Landon Kassebaum Baker and former federal appellate judge Deanell Reece Tacha together wrote an op-ed piece criticizing the new selection method and the secrecy surrounding Brownback's appointment of Caleb Stegall.

And former Kansas Attorney General Steve Six released a column today that says the new selection process was a step backward that will hurt democracy in Kansas.

"The secretive selection and political wrangling over the current candidate will weaken Kansans' confidence in their judges, create a less independent judiciary, and erode the separation of powers," Six said.

Six said that Brownback's "long game" is to change the Kansas Constitution and apply the new appointment process for the appeals court to the Kansas Supreme Court.

"Kansans should prepare to man the barricades, to defend our Kansas Constitution, and to not allow partisan politics to change the way we select fair, independent, and qualified justices on the Kansas Supreme Court," Six said.

The dispute is over a new law that was pushed for by Brownback, Stegall and other conservative Republicans that changes the way judges are selected to the second-highest court in Kansas.

Under the previous system, when a vacancy occurred on the appeals court, a nominating commission received applications, vetted candidates, conducted interviews and presented a slate of three potential nominees to the governor, who would pick one.

But under the new system, the governor appoints a candidate to the court, subject to Senate confirmation. Stegall will face Senate confirmation next week during a special legislative session.

Brownback's selection of Stegall was the first one under the new law. Stegall had been passed over twice under the old procedure. In addition, under the nominating commission system, candidates names were made public and even the interview process was open to the public.

Brownback said the old system wasn't fair because lawyers dominated the nominating commission and the Legislature had no input into the process.

Brownback has refused to divulge the names of those who applied for the position, saying making the names of candidates public will deter potential candidates from applying.

In their comments, Kassebaum, Tacha, and Six said they weren't criticizing Stegall, but said they were concerned with the process.

"We cannot let Kansas be the place where the judiciary is under any cloud of suspicion that the selection process is based on anything other than merit and that the judges are answerable to anything other than the law, including the Constitution," Kassebaum and Tacha wrote.

Kassebaum, a Republican, represented Kansas in the U.S. Senate from 1978 to 1997. Tacha is currently dean of the law school at Pepperdine University after having retired from the 10th U.S. Circuit Court of Appeals. Former President Ronald Reagan nominated her to the bench.

Tacha, a former longtime Lawrence resident, and Six, a former state district court judge in Lawrence, had each written letters praising Stegall's qualifications. And Brownback noted during his news conference announcing Stegall's appointment that his nominee had the support of Republicans and Democrats.

But Six, a Democrat, said, " … my experience with the candidate does not endorse or support the current secretive partisan selection process — the claims that someone has Democratic or Republican support shows how far we have moved from the previous non-partisan merit selection system that worked so well for many years."


2xhawk 7 months, 1 week ago

All this whingeing about the process reminds me of Stalin's response when asked about the Pope's influence on some issue or the other: "The Pope!? How many divisions has he got?" (The Second World War (1948) by Winston Churchill vol. 1, ch. 8, p. 105.)

The Brownbackians, the people who donate to them and the people who vote for them don't give a fig about what you think the democratically ideal way of picking judges is. They care about getting power, then using it.

Did they trick Tacha and Six into making endorsements? Maybe, who cares?

If you want to fight back, work on voter registration and education. Otherwise, go f*** yourselves.


yourworstnightmare 7 months, 2 weeks ago

Aside from changing he process, what is worrisome is the lack of transparency on the part of Brownback. He is hiding the details of the selection process from the public, in my opinion needlessly.

He default to secrecy and hiding are troublesome. He is either ashamed of his role in the process and knows he did something sleazy, or just wants to show that he is in control and can do whatever he wants at any time. I think it is the latter. He wants to dictate, not govern.


juma 7 months, 2 weeks ago

Hey, little Stevie Six you get what you sow. grow up


hillsandtrees 7 months, 2 weeks ago

When writing their letters of recommendation, I wonder if Six and Tacha knew of Stegall's writings to take 'extra-legal' action on behalf of Terri Schiavo, his view that the Kansas Supreme Court had no right to rule that the Kansas Legislature should follow their own laws in regards to funding schools, and that the U.S. Supreme Court's Roe v. Wade decision was wrong?


smileydog 7 months, 2 weeks ago

Someone who wants to be a judge does it for: Power; Status; or Politics.


Garth Atchison 7 months, 2 weeks ago

I believe this is what is commonly referred to as an "activist judge". Normally, those are words that the right wing likes to use for anyone that disagrees with their position. In this case, it is a political appointment to a position that should be chosen by credentials, but is instead chosen for ideology. They make sure the government doesn't work right, then they make sure the judicial has no connection to the idea of justice, and then they make it difficult to be involved in the process--voter suppression. Basically, they have no respect for the Constitution of the nation nor the state of Kansas, unless it fits their political views.


toe 7 months, 2 weeks ago

Until law schools give equal weight to conservatives as liberals, allowing lawyers to control judges is wrong. The old liberal law school to liberal bench has to be broken. Unfortunately, it will take some time and work.


jimmyjms 7 months, 2 weeks ago

A link to the op-ed would have been nice.


mikekt 7 months, 2 weeks ago

This guy knows too much about the whole system of brownie and the kochs be unemployed, they will make him into being a Judge .


Larry Moss 7 months, 2 weeks ago

Yes, notable. Bah!

Democrats want to change the law back to the old way. It's not going to happen any time soon. If sometime in the future Democrats had enough power to change it back, they wouldn't. No, they'd like the law then.

Feign distain....


kansanjayhawk 7 months, 2 weeks ago

Under the old system the Kansas Bar Association is given too much power. They control most of the positions on the nominating commissions. If the nominating commissions are reformed to allow more accountability and public input there might be a way to make the old system work. However, it is presently broken as the legal establishment has much more control over the selection of judges than does the public. The system devised for selection of the appellate nominees is set up much, as is, the Federal system to allow the governor to nominate and the Senate-the elected representatives of the people--to confirm. The legal establishment already has enough power without the power of selecting our Supreme Court and Appellate Court nominees.


weeslicket 7 months, 2 weeks ago

please compare:

1) In addition, under the nominating commission system, candidates names were made public and even the interview process was open to the public.

2) Brownback has refused to divulge the names of those who applied for the position, saying making the names of candidates public will deter potential candidates from applying.

the governor has no clothes-- that's the only transparency i see here.


Grump 7 months, 2 weeks ago

Many lawyers did not apply for this Court of Appeals position because to participate in the process impliedly endorses the process. Those who wrote letters of support for Stegall likewise impliedly endorsed the process. Shame on them.


JimRusso 7 months, 2 weeks ago

I have respect for both Tacha and Six, but I still wonder if they would have written letters of recommendation for Stegall if they had known that he had once endorsed extra-legal action and forcible resistance to the State as a response to a court decision he disagreed with.

Stegall co-signed a 2005 editorial addressing the withholding of feeding to Terri Schindler-Schiavo; Stegall and his co-authors stated if the Florida legislature and Governor Bush failed to intervene, that her family, friends and community would be "morally free to contemplate and take extra-legal action as they deem it necessary to save Terri’s life, up to and including forcible resistance to the State’s coercive and unjust implementation of Terri’s death by starvation."

The editorial may be found in its entirety at

How can Stegall expect others to follow his court orders if he is confirmed to the bench when he has openly advocated taking the law into one's hands?


Joe Hyde 7 months, 2 weeks ago

Their objection to the appointment process suggests to me that former judges Six and Tacha, at some point earlier, received in the mail narrowly-worded "qualified for the position" inquiries regarding Mr. Stegall. But regarding Mr. Stegall only. (Had their opinions been solicited regarding any more candidates, I'm certain they would now divulge those names.)

No, I think what happened here is that the honesty of Mr. Six and Ms. Tacha, and especially their professional reputations, were cleverly decoyed. They got suckered, their letters of support cynically exploited to further enhance the authoritarian governing methods of a petty dictator.

Mr. Stegall cannot be blind to the autocratic methodology of the Koch-controlled Kansas legislature. He therefore has an opportunity to enshrine his name as a true believer in the separation of government voluntarily withdrawing his name from consideration for this appeals court seat prior to Kansas Senate confirmation. He can do it if he faces the hard fact that he, too, is being cynically used in a manner that poisons the legitimacy of the Kansas judicial system.


Hardhawk1 7 months, 2 weeks ago

Six and Tacha were right on both points. Stegall is, by any objective measure, qualified for the Court of Appeals. Was he the most qualified of those who applied? We will never know because of the secrecy. It is possible and consistent to be able to support the nominee's qualifications but feel the process of selection is flawed. That is what happened here. No more, no less.


oldexbeat 7 months, 2 weeks ago

Gee, I read this differently -- they were both honest about their view of Caleb in writing letters of support, and now are honest about their view of the new secret system. They could not have known that Liar Sammy would hide all the nominations, I would suggest. It is Brownback's dishonesty (what a surprise, man lies all the time) about his desire for a more open system -- hmmm, why did we believe that -- but now censoring the applicants names. This isn't about applying for home room representative. It is about being a judge for ever.


Grump 7 months, 2 weeks ago

What? Did Six and Tacha not understand their letters praising Caleb would become public and now they are trying to back up? They can't have it both ways.

Yes, there were people more qualified than Caleb who applied. It's an open secret.


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