Will new member of Supreme Court Nominating Commission tip balance in Brownback’s favor?

? It is possible that one of the most consequential elections of 2016 in Kansas has already taken place. And it was a race in which only one person was nominated, and hardly anyone in Kansas knows much about him.

Lenin V. Guerra, an Olathe attorney, was recently chosen by default to fill an open seat on the Kansas Supreme Court Nominating Commission, a group that has significant influence over the naming of Supreme Court justices.

That commission has been the subject of intense and heated debates in the Kansas Legislature in recent years. Critics say it unfairly limits a governor’s ability to name justices and gives too much control to the very attorneys who practice in front of the court.

And conservative groups in particular complain that the Kansas Bar as a whole is more politically liberal than the rest of the state, and thus the process produces a Supreme Court that issues liberal opinions, especially in cases involving issues such as the death penalty, abortion or school finance.

Guerra’s appointment comes at a time when many of those conservative groups, including Kansans for Life as well as the Kansas Republican Party, are actively campaigning to have four current justices removed from the bench in retention elections this November.

Now, people on both sides of that issue are wondering whether Guerra’s appointment will tip the balance on the commission in Brownback’s favor, which would effectively give him a free hand to name replacements, if any of the justices should lose their retention races.

Reached by phone, Guerra declined to be interviewed.

His appointment, though, is a particular embarrassment for attorneys who support the existing “merit selection” process and are now scratching their heads, wondering how they could have let an important seat on the panel slip through the cracks.

“Do we want people who think like we do to sit on that committee? Yes,” sad Gaye Tibbets, president of the Kansas Women Attorneys Association. “Did this happen without our input? Yes. Do we know why? No.”

But Mike O’Neal, president and CEO of the Kansas Chamber, said he sees no cause for concern over Guerra.

“I have met Mr. Guerra,” O’Neal said in an email Thursday. “He has a great immigrant story and perspective (native of Ecuador). Loves America and providing legal services to those in need. Wants to get involved so signed up for this spot and was surprised to learn he was the only applicant. Very humble and levelheaded from my first impression. No ‘agenda’ that I’m aware of.”

Neither the Kansas Women Attorneys Association nor the Kansas Chamber is taking an active position in the ongoing battle for control of the Supreme Court. But both groups have members who, individually, are often very active in political and judicial issues.

The nominating commission

In 1958, Kansas voters amended the state constitution to adopt what’s called a “merit selection” process for Supreme Court justices. Under that system, whenever a vacancy occurs, a nine-member commission sifts through applications, interviews candidates and sends a list of three names from which the governor chooses to make an appointment.

That amendment was adopted in the wake of a political scandal, famously known as the “Triple Play of 1956.”

That was when a sitting governor who had just lost his bid for re-election, and the state chief justice at the time both resigned their positions just days before their terms expired. The lieutenant governor then became governor for the final week of the term, and his only official act as governor was to appoint the former governor to the vacant Supreme Court seat.

Several other states have similar systems. But Kansas is the only state in which licensed attorneys in the state control a majority of the nine seats.

Under the Kansas plan, five of the nine members are elected by attorneys: one from each of the four congressional districts, and one at-large who serves as the chair.

People on the commission are allowed to serve up to two terms. Matt Keenan, an attorney from Overland Park, had been the lawyer member from the 3rd District, but his second term ended June 30, thus creating the vacancy that Guerra was named to fill.

The remaining four seats are held by nonlawyers who are appointed by the governor. They serve staggered four-year terms. That means only a two-term governor would ever have the opportunity to name all four nonlawyer members, and Brownback has now been in office long enough to accomplish that.

The justices then stand for retention in the first general election after their appointment and every six years thereafter.

Until recently, it has been impossible to know how the partisan and political divisions within the group have played out because they voted in secret. But that law was changed recently, and the next time a vacancy occurs their votes will be recorded in public.

During his six years in office, Brownback has had an opportunity to appoint only one justice, and the list of nominees sent to him by the commission included the one most people assume Brownback wanted, his own former chief counsel: Caleb Stegall.

Since 1958, no Kansas Supreme Court justice has ever lost a retention election. But in 2014, the two justices who were up for retention at the time, Eric Rosen and Lee Johnson, were targets of a “vote no” campaign that Brownback himself took part in after their decision to vacate the death sentences of convicted killers Jonathan and Reginald Carr, of Wichita.

Rosen and Johnson both won their retention elections, but with slightly less than 53 percent of the vote.

Calls for change

For the last few years, Brownback and some conservative Republicans in the Legislature have been calling to change the selection process.

Brownback has pushed for restoring what’s called the “federal model,” where the governor appoints the justices directly, subject to confirmation in the Senate. Others have called for more limited change by eliminating the built-in lawyer majority.

In February, the House Judiciary Committee held hearings on a bill that would have removed the lawyer majority by expanding the commission to 15 members: four elected by attorneys; five appointed by the governor; and six appointed by legislative leaders from both parties.

At that hearing, Keenan, who was finishing out his term as the 3rd District lawyer member, testified against the bill, arguing that the current system had produced good results and that the change would inject too much politics into the nominating commission.

One person who has supported the change, though, was University of Kansas law professor Stephen Ware, who has written extensively about judicial selection processes and says, ” No other state but Kansas allows the bar to select a majority of the commission.”

Ware said this week that he was not surprised by what happened with the most recent vacancy on the commission.

“This confirms the lack of openness in the Supreme Court nominating omission process,” Ware said, “that even something as important as a member of the commission has not been widely publicized. We didn’t see front-page articles about this. It’s a relatively under-the-radar-screen process.”

Ware said he supports the federal model because, under that system, everyone involved in appointing justices is publicly elected and can be held accountable by the voters.

Critics of the federal model, however, point to the contentious Senate hearings that have occurred over some past U.S. Supreme Court nominations — Robert Bork in 1987 and Clarence Thomas in 1991 — as examples of how partisan and political that process can become.