By John Celock
A proposal to overhaul the way Kansas Supreme Court justices are selected was defeated Thursday in the state House of Representatives, failing to garner the needed super majority.
The GOP-controlled House voted 68-54 on the proposed amendment to the state constitution, which fell below the 84 House votes needed to advance. The proposal would have abolished the state’s judicial nominating commission and allowed the governor to name Supreme Court justices with the consent of the state Senate. The proposal has been a top priority for Gov. Sam Brownback (R) and conservative groups in the state.
As was the case during the House’s debate on the issue Wednesday, supporters focused on the theme that the amendment would allow Kansas residents to have a voice in the way the state selected Supreme Court justices by considering the amendment. The current system was adopted in a statewide referendum in 1958.
“A yes vote does not change the method in which Kansas Supreme Court justices are selected,” Rep. Virgil Peck (R-Tyro) said. “It merely allows Kansas voters to decide if they wish to keep the current system more democratic.”
Under the constitution, if the amendment had passed the House it would have gone to the Senate for consideration. If passed by the Senate, it would have advanced to a statewide referendum in November.
During the debate Wednesday, which was also touched on Thursday, supporters of the amendment noted that the current system leaves the appointment process largely in control of the state’s lawyers. The state bar elects five of the members of the nominating commission, while the governor appoints four. The commission forwards three names for each vacancy to the governor, who then picks a justice. Justices face statewide retention votes on a regular basis.
The judicial selection process has been under debate for a number of years with conservatives arguing that the current Supreme Court has gone more moderate than the state. The debate centered on a recent decision by the U.S. Supreme Court to overturn the state Supreme Court’s 2014 ruling to end the death penalty for the Carr brothers, who were convicted of the Wichita Massacre that left five dead.
Assistant House Majority Leader Mario Goico (R-Wichita) touched on the Carr brothers case Thursday. He noted that the U.S. Supreme Court voted 8-1 to overturn the state Supreme Court and that the federal decision said the state court’s opinion did not match up with federal law or case law.
“Yesterday we had a number of explanations on arguments on the Kansas Supreme Court. Having been here for a while, I know that the issue is never the issue,” Goico said. “Basically a side look, I looked at the brutality of the killing of the Carr brothers did in Wichita. It was outrageous and it shocked the community. Our decision today should be based on the national embarrassment of the U.S. Supreme Court declaring the Kansas Supreme Court inept on the Carr brothers decision.”
Opponents of the amendment, which included Democrats and moderate Republicans, said that the change would imperil separation of powers and an impartial judiciary. In a joint explanation of vote statement, Reps. Don Hineman (R-Dighton) and Russ Jennings (R-Lakin) said that they would “not be bullied” by outside groups pressing for the passage of the amendment.
Rep. Boog Highberger (D-Lawrence), the top Democrat on the House Judiciary Committee, said in his statement that he wanted balance in government. He said a change would place the judicial system into a partisan political process.
“Our system of government relies on a system of checks and balances,” he said. “That system of balances works best when the judicial branch isn’t injected into partisan politics.”