By John Celock
Kansas lawmakers gave preliminary approval to a constitutional amendment to overhaul the state’s judicial selection, but it fell 15 votes short of the needed super majority for final passage.
The state House of Representatives voted 69-53 in the Committee of the Whole to pass an amendment to the state constitution abolishing the state’s judicial nominating commission for the state Supreme Court and replacing it with the federal model of a gubernatorial nomination with state Senate approval. However, the House will need a 84 vote super majority on final action Thursday in order to advance the amendment to the state Senate for consideration. The amendment will go to a statewide referendum if passed by super majorities in both legislative chambers.
The vote is the first lawmakers have taken on the hotly debated topic of judicial selection changes, which Gov. Sam Brownback (R) and other conservatives have made a top priority. While supporters framed Wednesday’s debate in terms of providing what they say is a more democratic process for selecting Supreme Court justices, opponents pointed to previous words from Brownback saying that the overhaul would allow for a conservative court.
“A free people can decide on who can best direct their lives,” Rep. James Todd (R-Overland Park), who was carrying the bill, said. “The current system pushes the people aside and says that they or their representatives are unimportant.”
Under the current system, the nominating commission consists of five members elected by the lawyers in the state and four members appointed by the governor. The commission presents three nominees to the governor and if the governor does not select one of the three, the chief justice of the Supreme Court would make the final pick. Justices are subject to a statewide retention vote at the next statewide general election and every six years following. Under the proposed amendment, the governor would have 60 days to pick a justice with Senate confirmation. If the governor were to fail to pick a justice in that time frame, the decision would fall to the chief justice.
Todd and other supporters said that the change would allow for the people to have more control over the process, by having elected representatives make the decision.
“Our current process is undemocratic. Out of a state population of almost three million only about 10,000 people, all lawyers, get the option to cast a ballot to fill a vacancy on the nominating commission,” Rep. John Rubin (R-Shawnee) said. “Not all of them vote. The average vote is between 2,500 to 3,000 people.”
Supporters also framed that the debate as one where the Legislature was giving the residents of Kansas the first statewide vote on a model to pick Supreme Court justices since the current model was adopted in 1958.
Todd said that the amendment was not about Brownback or a more conservative court, noting that Brownback will be term limited in 2018. He also said that since the 1958 model was adopted the state has had a Democratic governor for 29 years and a Republican governor for 26 years.
Todd said the amendment originated from Attorney General Derek Schmidt (R) during his tenure as a state legislator in 2005 when Democrat Kathleen Sebelius was governor.
Opponents of the measure – who included both Democrats and moderate Republicans – said that the current system has worked in the state. They said that it has allowed for a screening process to go into the system and not have a system where the governor could reward political cronies with seats on the bench.
“A lot of folks say that the process we have in KS is unique or unusual,” Rep. John Carmichael (D-Wichita), the top Democrat on the House Judiciary Committee, said. “We have tried to achieve a balance between the voice of the people while at the same time protecting the minority of what our founding fathers said is the tyranny of the majority.”
Out of states with judicial nominating commissions, Kansas is the only one where the state bar picks the majority of the members.
Opponents said that a Kansas specific system can give the state better judges. Rep. Boog Highberger (D-Lawrence) noted that most states have not adopted the federal model and have adopted systems for their own states. Rep. Don Hineman (R-Dighton) characterized the issue as a pull between the rural and urban parts of the state, saying the current system, which has two commissioners from each of the state’s four congressional districts, allows for a balance for the entire state. He said a future governor from an urban or suburban area could stack the Supreme Court, noting that a rural governor could do the same.
Most of the debate focused on the constitutional issues surrounding selection, several of the issues surrounding the current Supreme Court crept into the debate. While the hot button debate over education funding, which has played out in the Supreme Court, was not brought up, the recent rulings on the death penalty were.
Last month, the U.S. Supreme Court voted 8-1 to overturn the state Supreme Court’s decision to end the death penalty for the Carr brothers, who were convicted in the 2000 Wichita Massacre that left five dead. In the ruling, the U.S. Supreme Court ruled that the legal decision made by the state court was “extravagantly speculative.”
Rubin focused on the Carr brothers case, saying that the case should be a factor in the decision, noting that the U.S. Supreme Court decision was favored by both conservative and liberal justices.
House Democratic Agenda Chairman Brandon Whipple (D-Wichita), who has voiced support for the U.S. Supreme Court ruling on the Carr brothers, used the debate to attack outside groups who have said a vote against the judicial selection amendment is a vote against the death penalty for the Carrs.
“That’s disgusting,” Whipple said.
Until 1958, state Supreme Court justices were elected in statewide elections with interim vacancies filled by gubernatorial appointment. A controversy over an interim appointment in the 1950s, dubbed the “Triple Play,” led to the current system.
Following then Gov. Fred Hall’s (R) defeat in the 1956 Republican gubernatorial primary and subsequent election of Democratic Gov. George Docking, Hall wanted to ensure his appointment as Supreme Court chief justice following the December 1956 resignation of Chief Justice Bill Smith.
Hall resigned from the governorship on Jan. 3, 1957 – 11 days before the end of his term – handing the governorship to his lieutenant governor, Republican John McCuish. McCuish then appointed Hall to the vacant chief justice post as the only official act of his governorship before handing the office over to Docking. McCuish’s tenure in the governorship was the shortest in Kansas history.
Hall held the chief justice’s post until 1958 when he stepped down to unsuccessfully challenge Docking for the governorship.
Todd said that the situation now is different than 1958 since he said this year’s vote is not in the face of an immediate political crisis. He and others would give voters a chance to weigh in.
Rep. Mark Kahrs (R-Wichita) took issue with the opposition from the Kansas Bar Association on the system.
“They don’t want to lose their sacred right to pick our judges,” he said.
Whipple delivered a speech heavy in constitutional theory, noting that the federal system with Senate confirmation would not work in Kansas. He said that with two U.S. senators per state, equal weight is distributed across regions of the country and from heavily populated states with urban centers to smaller rural states. He said that with Kansas having 40 state senators in equal size districts, more senators are concentrated in urban and suburban populations centers including Wichita, Kansas City and Johnson County. He said the senators from those population centers can band together to outweigh rural voices.
Whipple also said that the U.S. Constitution has been amended less over the years, which he said is a good thing. He noted that the state constitution should be considered in the same way.
“The constitution is a sacred article that needs to be rewritten only when the people’s rights have been violated,” Whipple said.