Topeka 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.