Archive for Sunday, January 27, 2013

Analysis: Path not easy for plan to overhaul judicial selection process in Kansas

January 27, 2013


— Conservative Republican legislators are pushing aggressively for an overhaul of how Kansas fills vacancies on its two highest courts, but they face significant obstacles in getting a proposed amendment to the state constitution on the ballot.

Some GOP lawmakers have argued for almost a decade that the current system of having an attorney-led nominating commission screen applications for the state Court of Appeals and Supreme Court is biased against conservatives. They’ve been frustrated with court decisions ordering the state to increase spending on public schools, and abortion opponents view the courts as too liberal on that issue. Conservative Republican Gov. Sam Brownback also is pushing for change.

For now, the favored proposal for conservative Republicans is having the governor appoint whomever he or she pleases, subject to Senate confirmation. Both the House and Senate Judiciary committees have endorsed the change in separate measures that would end the practice of having the nominating commission pick three finalists and requiring the governor to pick one, with no role for legislators.

Republicans have supermajorities in both chambers, and conservatives are in charge. In the 40-member Senate, conservatives hold 27 seats, the exact number needed for a two-thirds majority to approve a constitutional amendment, and they could attract another vote or two.

In the 125-member House, the picture is cloudier. The GOP’s overall advantage is 92-33, but moderates have at least a dozen seats, probably more. A two-thirds majority is 84.

“That’s a big number and this is a serious, serious thing to do right out of the box,” said Rep. Jim Ward, a Wichita attorney and Democrat who opposes GOP conservatives’ proposal.

Also, 49 House members are new, and House Judiciary Committee Chairman Lance Kinzer, a conservative Olathe Republican, said supporters of changing the judicial selection system need time to survey them.

“I think there’s a lot of education to do,” he said.

Advocates of change not only need the approval of two-thirds majorities in both chambers but also a simple majority of voters in a statewide election. The current system of picking Supreme Court justices itself results from a constitutional amendment ratified by Kansans in 1958 with 60 percent of the vote. The state adopted the system by law for the Court of Appeals in setting it up in the 1970s.

Supporters of the existing system call it merit selection, reflecting a belief that it largely removes politics from picking judges and justices and focuses on candidates’ qualifications. That view appears to have prevailed for decades, though there have been complaints that the system favored urban candidates over rural ones, slighted western Kansas or failed to produce enough minority finalists.

Critics argue that the system is biased toward centrist or left-of-center, establishment lawyers and judges, particularly if they have strong ties to the Kansas Bar Association. Critics also see the system as undemocratic because five of the nominating commission’s nine members are attorneys elected by other attorneys, with the other four, all nonlawyers, appointed by the governor.

The Kansas Bar Association offered a proposal to expand the nominating commission to 15 members, with 11 of them appointed by the governor and legislative leaders, but GOP conservatives aren’t much interested. Also, Kansas University law professor Stephen Ware, perhaps the state’s leading academic critic of the current system, told lawmakers last week that reducing attorneys’ influence on the commission helps but doesn’t cure the “lack of democratic legitimacy.”

“The important question for democratic legitimacy is not whether the bar selects a majority of the commission,” Ware said. “It’s whether the bar selects ANY members of the commission.”

The GOP right is hunting bigger game, too. It wants to ensure that conservative governors can appoint conservative judges and that conservative legislators have a chance to block nominees they see as too liberal.

Moderates and liberals perceive an attempt by Brownback’s allies to eliminate a potential check on their power. Conservatives argue that they’re trying to ensure that the courts are accountable to the same citizenry that has pushed state government to the right.

Whatever the assessment, conservatives are confident of getting a two-thirds majority in the Senate. The partisan balance is 32-8 in favor of the GOP, and only five Republicans are considered moderates.

“The selection process for judges in Kansas is broken,” said Senate President Susan Wagle, a conservative Wichita Republican. “We’ve studied this for years, and I believe we have the votes to put this on the ballot.”

Critics argue that the proposed constitutional change at least ought to go on the ballot in the November general election, when turnout will be at its highest. Sen. David Haley, the ranking Democrat on the Senate Judiciary Committee, complains that GOP leaders are “trying to fast-track it.”

“Before the light bulbs of independence go on over the heads of many legislators, I think there’s a rush,” Haley said.

Quick approval by the Senate could create an impression that momentum for change is building. But the House would remain a big hurdle to overhauling the judicial selection process.


Paul R Getto 5 years, 1 month ago

The GOP right is hunting bigger game, too. It wants to ensure that conservative governors can appoint conservative judges and that conservative legislators have a chance to block nominees they see as too liberal.

The understatement of the year (so far.) Sam wants it all in his pocket.

question4u 5 years, 1 month ago

Even the dullest little child knows that nothing in the state of Kansas is "biased against conservatives." (now, even when you define "conservative" as right-wing radical)

Judges tend to be biased against unconstitutional actions. They also tend to be biased against injustice. That's supposed to be part of the job description of any legitimate judge.

What American worthy of the name believes that political parties should control the legal system? The extremists who want to corrupt the Kansas legal system are the same people who wanted Republican candidates to take a loyalty oath last year. Those are not the kinds of proposals that fly in any legitimate democracy.

Do Kansans care about democracy? The results of this attempted power grab will reveal a lot.

sleepy33 5 years, 1 month ago

Wish I could give your post more than 1 thumbs up. What's the point of having 3 branches of government if 1 person controls them all?

just_another_bozo_on_this_bus 5 years, 1 month ago

Implementing Brownback's and the legislature's plan will not make it any less extreme (it'll be considerably more extreme in the current political climate) or any less secretive, and the notion that it'll be more "democratic" will be completely counteracted by the complete politicization of the court system, and the rulings it makes.

ebyrdstarr 5 years, 1 month ago

The process is not secretive. The nomination process is open to all comers. That there is an opening is publicized, and members of the public are encouraged to nominate individuals. The list of nominees is made public. The interviews themselves are open to the public. The names of the nominating commission are publicized and, again, the public is encouraged to contact the commission with feedback on any nominees.

There are advantages to this system which you have never acknowledged that I can see. First, it opens at least the possibility that a qualified candidate who is not well-known to the political power players can be considered. By contrast, a governor-appointed candidate is going to be limited to candidates who have made themselves known to the governor, or those closest to him/her. Second, it allows the judiciary to remain insulated from influence by the legislature.

Orwell 5 years, 1 month ago

"Undemocratic?" The voters of Kansas chose the current system to avoid the cronyism and politicization of the old system Professor Ware wants to see re-imposed. In decades of operation under the current system the voters have had their say hundreds of times on the results of the current process, and voter non-retention of judges is extremely rare.

"Extreme?" Not when compared to an alternative where the governor is empowered to hand-pick the judges that would evaluate the legality of gubernatorial action. The Right's determination to throw out an entire system rather than try to fine-tune it is the more extreme course.

"Secretive?" Simply not true. If there's any part of the process that needs to be more open, identify it and propose a specific remedy.

No, these are subjective labels and scare tactics used to distract from a serious discussion of the process, employed by those who want to acknowledge and allow only a single conservative view in Kansas politics.

Catalano 5 years, 1 month ago

Here's a link from a recent KCPT show that also goes into the history of why we do things the way we do today (the infamous "triple play"):

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