Topeka In the midst of a politically charged national debate over the selection of a new justice for the U.S. Supreme Court, a Kansas House committee on Tuesday began debating another plan to change the way state appellate court judges are selected.
On Saturday, Justice Antonin Scalia died unexpectedly, and his death immediately set off a partisan battle in Washington over whether the Republican-controlled Senate should allow President Barack Obama to nominate his replacement.
While some people who spoke to the Kansas House Judiciary Committee on Tuesday said they feared any change in the current system in Kansas would only inject more politics in the process, similar to what's being witnessed at the federal level, at least one member of the panel said he thought that might be a healthy thing for Kansas.
"I know at least from my constituents' perspective, their line is something along the lines of, 'Thank God we have the Senate to protect us from a liberal activist appointee,'" said Rep. Craig McPherson, R-Overland Park.
The plan now being debated in the committee would completely rewrite Article 3 of the Kansas Constitution to include provisions for both the Supreme Court and Court of Appeals. The appeals court is currently only authorized under statute.
It would also use the merit-based selection process for both courts, repealing the change made a few years ago to have Court of Appeals judges appointed directly by the governor, subject to Senate confirmation.
But it would expand the nominating commission that screens those candidates from nine members to 15: four elected by Kansas attorneys; five appointed by the governor; and six appointed by legislative leaders from both parties.
The commission screens candidates and sends to the governor a list of three nominees from which to choose. If the governor refuses to choose from those nominees, the Chief Justice of the Supreme Court is required to choose one.
Currently, attorneys elect five of the nine members, giving them an automatic majority, which has been a point of contention for many conservatives who oppose the current structure.
Mike O'Neal, a former Kansas House Speaker who is now president and CEO of the Kansas Chamber, testified in favor of the plan.
"I will tell you that before I took this job, while I was in the Legislature, I was frankly embarrassed by the fact that Kansas was the only state in the union, who had the nominating commission process, who had a majority vote on the part of the bar," he said. "I never felt that was necessary."
But Matthew Keenan of Leawood, a member of the current nominating commission, said the other states that use similar systems also have provisions that prevent either political party from having more than a one-seat majority on their panels, something he said is not included in the plan now being considered.
"And with all due respect, I think inevitably, the risk of at least perception of politics begins to creep into the process when you talk about political members having the opportunity to make appointments," he said.
Keenan defended the current selection process, arguing that in 2014, the last time there was a vacancy on the court, the commission sent the governor three highly qualified nominees. He said Kansas should keep the current system because it has produced good results.
"I think that’s up for debate," Rep. John Whitmer, R-Wichita, responded. "I can point to a 16-year decision to get a death penalty case wrong, if I wanted to. It’s all relative."
Whitmer was referring to the case of Jonathan and Reginald Carr, whose death sentences for a 2000 murder spree were vacated last year by the Supreme Court. That ruling has since been overturned by the U.S. Supreme Court, in a decision written by Justice Scalia.
But Keenan said that when the commission interviewed candidates in 2014, some of them were openly critical of how long it had taken the Kansas Supreme Court at that time to rule on the case.
Rep. John Barker, R-Abilene, did not indicate when the panel might take action on the measure. He said one person who wanted to testify, Kansas University law professor Stephen Ware, was unable to attend Tuesday, but may offer testimony later in the week.