The good news is that it’s unlikely the Kansas Legislature will take further action during its current session to alter the powers or selection process for the Kansas Supreme Court.
However, three bills introduced by the House Federal and State Affairs Committee last week almost guarantee a heated ideological battle next year about the role and significance of the state’s highest court.
A group of legislators had been working with the Kansas Bar Association to develop a plan for appointing Supreme Court justices that included Senate confirmation. Just a day after the Bar Association’s board voted to reject the Senate proposal that had been crafted, House Judiciary Committee Chairman Lance Kinzer, R-Olathe, responded by unveiling three proposals that would drastically alter the state’s judiciary.
One proposal is to amend the Kansas Constitution to adopt a federal system of judicial appointments, whereby the governor would nominate members of both the Kansas Court of Appeals and the Supreme Court and those nominations would be confirmed by the Kansas Senate. The current Supreme Court Nominating Commission would be abolished. Kinzer said the amendment was his favored plan, but if that plan failed, he would push to lower the mandatory retirement age for judges on both appellate courts from 75 to 65. The third bill would create a new Kansas Court of Criminal Appeals, which would handle all criminal cases currently handled by the Supreme Court, leaving that body to handle only civil cases.
It’s no secret that Gov. Sam Brownback and many state legislators are upset with the Kansas Supreme Court and its decisions on a number of issues — particularly its ruling that the state isn’t fulfilling its constitutional mandate to properly fund K-12 education. Rather than work to pass legislation or amend the constitution to deal with specific issues like school finance, however, legislators are choosing to attack the courts in ways that could potentially upset the intended balance of power among the three branches of government.
Kinzer’s preferred measure — the federal model — would increase the chances that appointees could be poorly qualified or selected to satisfy political paybacks or advance a political agenda, as too often is the case with U.S. Supreme Court nominations. The plan to lower the retirement age for justices would guarantee that, if he is elected to a second term, Brownback would have the opportunity to stack the courts by making at least eight appointments to the two appellate courts. The proposal to create a new criminal appeals court would reorganize those courts and remove the Supreme Court as the final arbiter of many cases it now handles.
Kinzer acknowledged to an Associated Press reporter that his proposals represent “a fundamental reorganization of the structure of the courts.” For what purpose? Is there really a problem, or is changing a solid state judicial system intended to serve a political agenda? Kinzer and others say the state’s appellate courts need to be more accountable to the public. Judges already are accountable through regular retention votes by the public. Although the vast majority of those who exercise their right to vote on the matter don’t know much about the judicial excellence of the judges, the retention system allows the public to remove judges who clearly are unsatisfactory while insulating judges from political influence.
It’s a system that has worked well for Kansas but that apparently will come under serious attack in the 2014 legislative session. Kansans who support an independent judiciary had better be prepared.