Thursday, December 18, 2008

What Matters in Kansas: Our Kan-garoo Court

Welcome to the second installment of our new series at Kaw & Border -- What Matters in Kansas. In this post, we will be focusing on the makeup and process of selecting the Kansas Supreme Court.

As any reader of this blog knows, the Kansas Supreme Court has been the subject of much controversy over the past several years. Whether you're talking about the Montoy school finance decision in 2005, in which the Kansas Supreme Court usurped legislative power and ordered the legislature to spend a certain amount of money on schools; or the Limon decision later in 2005, in which the court said "moral dissapproval of a group cannot be a legitimate government interest"; or recently, in the Planned Parenthood case against Phill Kline, when some of the justices, in contrast to their own ruling, went on a blog-like rant against Kline, stating at one point "We are unwilling to make those taxpayers foot any further bill for the
conduct of a district attorney they did not elect in the first place and have now shown the door,"
the Kansas Supreme Court has becoming in our eyes, "Our Kan-agroo Court."

In all three cases, the Kansas Supreme Court either invented law or used some kind of rant or public opinion" to make their ruling. In this environment, can anyone who has a case that goes before the Kansas Supreme Court honestly expect any kind of sensible ruling based on the law?

These rulings, which we could dissect in futher detail to demonstrate their absurdity, would make many casual political observers ask how in the world does such a court even come to existence in a red state like Kansas?

Good question, isn't it?

The answer lies in the way we select our Supreme Court justices in Kansas -- by a bar association-dominated "Nominating Commission." It is composed of four "non-lawyers" appointed by the Governor and five attorneys nominated by their fellow attorneys. This commission then sends three names to the Governor, who then must select one of the three. If he/she doesn't, it then goes to the Chief Justice of the Supreme Court.

Can the Govenor reject all three? No. Can the Senate reject any of the three? No. It's basically "pick among these three no matter what".

This process has earned Kansas the dubious distinction of being the only state that has its nominating commission dominated by the bar. Kansas' unique process of selecting judges is discussed at length in Steven Ware's report "Selection to the Kansas Supreme Court".

Really, when you consider it, the Kansas Courts are not really a third branch of government, as set forth in the Kansas Constitution, as that would signify some kind of check and balance by the people at some point. In all practicality, it is a branch by the bar association, with the only elected input being the Governor who must select one of the three. It is a branch without a check, other than a constitutional amendment to change it.

Now, currently, we have a liberal Governor in Kathleen Sebelius who of course, would fill the four non-lawyers with liberals and then, of course, be given three liberal names to choose from. Fine, she probably would anyway, even if we had a different system. Most folks would say, okay, let's kick her out of office -- fine. But consider this:

Say conservative Sam Brownback is elected in 2010, and eventually makes all four non-lawyers conservative Republicans. The problem is, the rest of the nine members are all lawyers appointed by the liberal bar association. So, that commission could feed Governor Brownback three liberals and he'd be forced to pick one -- or have the decision be made by the Kansas Supreme Court. Now, maybe we'll get lucky and get one that is more conservative and have a 5-4 nominating commission majority -- but as one can tell, that creates a lot of hoop-jumping in order to get to that point.

So basically, no matter what happens, the system is rigged so the bar gets who they want as judge. No wonder we get so many silly rulings, huh?

What, of course, needs to happen is a new system. There are different alternatives out there, from making the nominating commission either completely made up of non-lawyers or at least dominated by non-lawyers, or doing away with the nominating commission entirely and letting the Governor pick who he/she wants, and then making that selection require Senate confirmation -- something like the federal system. Or, you could go to direct elections.

The problem is, of course, that any such change would require a 2/3 majority in the legislature and approval by the voters, as the process of selecting Kansas Supreme Court is defined by the Kansas Constitution. But, if Kansas voters want any kind of say in who their judges are, that's exactly what needs to happen. We need to elect state legislators to both bodies who will commit to fundamental judicial reform - and not just tinkering with it, but going to something like the the federal system.

Our preference is to do away with the commission entirely and any involvement from the bar. The bar should have no role in formally selecting judges, other than it can, like any other interest group, say they like or not like a particular nominee. If for some reason we cannot do away with a commission, at the very least, it should ONLY be there to recommend people -- the Governor should have the ability to nominate who he/she wants -- with confirmation from the Senate.

If the commission remains, one creative proposal, to obtain the 2/3 votes necessary for passage, might be this -- if the Governor picks someone recommended by the Commission, it requires only a majority vote by the Kansas Senate. If the Governor picks someone outside that, it requires a 3/5 vote, or 24/40. This is not ideal, but would at least allow the Governor to sidestep the commission if it keeps sending unacceptable nominees -- a "check" against a currently "unchecked" commission.

Until some kind of sensible proposal is made, we will sadly keep seeing nonsensical rulings come down from the court. Even if Brownback were elected and able to get a couple justices to his liking, the likelihood of any more than that, under the current system, is extremely unlikely.

We hear a lot of talk about change in this country -- and the underlying goal of that change should be to make our government work better on behalf of the people. In Kansas, that starts with the way we select our judges.