Topeka — The Kansas Supreme Court’s decision to overturn two brothers’ death sentences for a robbery, rape and killing spree are likely to fuel another push by conservative Republicans to give the governor and legislators more say in how the justices are chosen.
Senate Majority Leader Terry Bruce says the judicial selection process will “absolutely” be an issue when legislators reconvene in January because of the court’s rulings last week in the cases Jonathan and Reginald Carr. Bruce, from Nickerson, said the rulings were no surprise because many members of the GOP-dominated Legislature believe the justices have shown an “activist” streak.
The Supreme Court last week voided the Carr brothers’ death sentences and returned the case to Sedgwick County District Court for more proceeding. The crimes for which they faced lethal injection were notorious: Three men and two women were robbed and forced to perform sex acts before they were taken to a snow-covered soccer field and shot, one by one, as they knelt. One woman survived a gunshot wound to the head and became a key witness.
The court also has yet to uphold any death sentence imposed under the state’s current capital punishment law, enacted in 1994; the last executions were in 1965. Several conservative GOP legislators said the Carr rulings demonstrate that the current court won’t ever clear the way for an execution.
“They don’t reflect the values and intent of the people of Kansas,” said Rep. Scott Schwab, a conservative Olathe Republican. “There are more moderate and liberal justices on the court, and Kansas is not a moderate and liberal state.”
Five of the seven justices were appointed by Democratic governors. The other two, who are the most senior justices, were appointed by moderate GOP Gov. Bill Graves in 2002.
Friday’s ruling came days before Justice Nancy Moritz — the lone appointee of former Democratic Gov. Mark Parkinson — departs for a federal appeals court judgeship, giving conservative GOP Gov. Sam Brownback his first appointment to the state court. Moritz was the only of the seven Kansas Supreme Court justices to argue for upholding the Carr brothers’ death sentences.
Fourteen judges and attorneys have applied for the vacancy, and the Supreme Court Nominating Commission plans to interview them next week in public meetings. It will submit three finalists’ names to Brownback, and he’ll pick one — with no role for legislators. Five of the commission’s nine members are attorneys, chosen by other attorneys.
Supporters of the current process argue it eliminates partisan politics so the selection process can focus on applicants’ skills and work history. Several Democratic legislators who oppose changing the system did not immediately return telephone messages seeking comment Monday.
But critics contend of the process a small group of attorneys have too much power. Brownback has publicly called it undemocratic.
The same process was in place for state Court of Appeals judges, but conservative GOP legislators changed Kansas law last year to cut out the nominating commission and have the governor make appointments, subject to Senate confirmation. The process for Supreme Court justices is spelled out in the state constitution, requiring both two-thirds majorities in the Legislature and approval in a statewide election for any change.
Senate Judiciary Committee Chairman Jeff King, an Independence Republican, said legislators shouldn’t change the selection process because of a particular court ruling but instead because they believe, as he does, that the current process isn’t accountable enough to the public.
However, King acknowledged, fellow legislators have been concerned about a string of rulings in capital punishment and other cases.
“Justice is best administered when the people administering it are a cross-section of the public,” he said.