Choosing justices is already done well

Politically driven ‘reform’ is ill advised

By The Mercury

It will be at least another year before conservatives in the Kansas Legislature succeed in politicizing the selection of justices to the Kansas Supreme Court. Good.

This year’s effort died Tuesday afternoon when the Kansas Bar Association’s Board of Governors, whose support was deemed essential by advocates of the change, voted unanimously to oppose the plan.

What’s at issue is the way Kansas chooses Supreme Court Justices. At present, by virtue of a 1958 constitutional amendment, a nominating commission consisting mostly of lawyers screens applicants and sends three names to the governor, who makes the final choice. There is no direct role for legislators.

That’s particularly irksome for conservatives who want more control over the judiciary, especially the Supreme Court. Conservatives in recent years have disagreed with several Supreme Court rulings on cases dealing with abortion, the death penalty and, most recently, education funding. They seek a constitutional amendment that would give them greater authority over the selection of justices. That would require two-thirds majorities in both houses of the Legislature and then majority support of Kansas voters.

Gov. Sam Brownback has called the present method of selecting justices “undemocratic,” even though legislators and Kansas voters combined to enshrine it in the state Constitution.

Gov. Brownback and conservatives seek a system more like that by which U.S. Supreme Court justices are selected, with the president making nominations subject to Senate approval. The proposal the Kansas Bar Association’s board rejected Tuesday was something of a compromise. It involved a nine-member nominating commission that would include four attorneys but would be controlled by the governor. Lee Smithyman, an Overland Park attorney who is president of the KBA’s board, said the proposal “provided too much power to the executive branch.”

He also said the association was “resolutely” in support of choosing justices on “merit.”

Lance Kinzer, an Olathe Republican who chairs the House Judiciary Committee, called the bar association board’s opposition “almost inexplicable.” We disagree. Not only is it easy to understand, it’s easy to agree with.

Conservatives might agree as well if justices were to see things their way more often. Many conservatives have concluded that the way to get their way more often is ensure that they have a bigger say in who serves on the Court of Appeals and the Supreme Court. That’s why they’ve pushed through legislation changing the way judges on the Court of Appeals are chosen, doing away with nominating commissions, which have placed a premium on merit, and leaving decisions up to the governor and the Senate, where motives are more political.

The present method of selecting Supreme Court justices has served Kansans well.  Politically driven “reform” efforts, whether led by conservatives or liberals, would undermine one of the Supreme Court’s great assets — its independence — and deserve to fail.

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