Opinion: Attacks on nominee not warranted

September 4, 2013


The continuing controversy over the change in the means of selecting judges for the Kansas Court of Appeals and the governor’s recent nomination of Caleb Stegall to fill the vacant seat on that court has, in my opinion, become problematic in several ways.

I need to begin this column by stating that I was strongly opposed to the change from the old system and continue to believe that the change was a mistake. The old system came into being to prevent excessive politicization of the Kansas Court of Appeals and Kansas Supreme Court. In spite of many statements made to the contrary, I do not believe that the old system (still in place for the Supreme Court) of having nominees selected by a nominating commission composed of lawyers and the general public resulted in the appointment of politically liberal judges. Indeed, I think that a close study of those selected under this system shows just the opposite. But, in spite of opposition to the change by many lawyers and judges and others concerned with the judicial system, the Legislature did pass new laws changing the selection method, and the governor signed that legislation into law. It is now the system we have to live with.

Having stated at the outset my opposition to the change, I now find myself very troubled by the attacks being made on the governor’s first selection under the new system: Caleb Stegall. Stegall was a student at Kansas University law school when I was dean, but I have no memory of him as a student. I certainly am not biased in his favor because he is a KU law graduate. What I am is very opposed to the kind of attacks being made by many in Kansas on his fitness to serve as a judge.

To some extent, these attacks seemed to be based on opposition to the change in selection method and the governor’s decision not to reveal the names of other applicants for the judgeship. I do not see how Stegall can be blamed for the acts of the Legislature and the governor. Another basis for some attacks on Stegall is that he served as Phill Kline’s lawyer. One of the fundamental underpinnings of the American justice system is that every litigant is entitled to legal representation. Lawyers often take on unpopular clients. It is simply wrong to suggest that a lawyer is unfit to be a judge because one does not like his clients.

Finally, I have seen several criticisms of Stegall’s fitness to serve because he was passed over twice for appointment to the judiciary in the past. The fact is that appointments to the Kansas courts are highly competitive and sought after. Many excellent lawyers who would make excellent judges are passed over. Stegall is certainly not the first judge in Kansas history to have been passed over in earlier attempts.

There may be valid reasons to oppose Stegall’s appointment to the Kansas Court of Appeals. In my view, the appropriate question to ask is whether Stegall has the proper temperament to be a judge on the Kansas Court of Appeals and whether he will apply the law properly and impartially. Regardless of whether one supports Stegall’s appointment, he is to be commended for being willing to serve Kansas and Kansans by serving as a judge. I have little doubt that he could easily have pursued far more lucrative employment opportunities in the private sector had he wished to do so.

Ironically, the attacks on Stegall that I have been discussing are precisely the kind of political attacks that the old system was designed to avoid. Personal attacks on judicial nominees are precisely the sort of thing that has kept many able candidates from being willing to be nominated for federal judgeships. It is unfortunate that the new system appears to have made such attacks now fashionable in Kansas. Perhaps, the governor and the Legislature should think about this and reconsider whether the new system is such a good idea after all.

— Mike Hoeflich, a distinguished professor in the KU School of Law, writes a regular column for the Journal-World.

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