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.

What Matters in Kansas: Conservatives When Convenient

Back from a break, we at Kaw & Border are launching a new series of posts entitled "What Matters in Kansas". Yes, it's an obvious play off the infamous book by Thomas Frank entitled What's the Matter with Kansas -- but unlike that renowned work of fiction, these posts will actually deal with the reality of what is going on in Kansas politics - i.e. -- What Matters in Kansas. We hope you enjoy.

---------------

Conservatives When Convenient

Despite the fact the legislative session does not begin for another month, the political wheels have been churning in the past week in the State Capitol in Topeka, Kansas.

Of course, we are talking about the recent leadership elections in the Kansas House and Senate. What most voters probably are not aware of is that we simply just don't vote for people in November and then that have that magically turn into results when it comes to legislation.

As all those who follow politics closely know, there is a major intervening force -- that is, who controls the chamber in each body. In Kansas, where there are at least three "factions" alive (Democrats, moderates, and conservatives), that goes beyond simply which party has a majority -- but rather, which faction within a caucus has a majority of the members. Confused yet?

In the Kansas Senate, which has been controlled by liberal Republicans with surprisingly few positive results, many thought there was an opportunity for conservatives to take control for the first time in recent history. Indeed, an article today in the Kansas Liberty discussed the issue at great length -- and how moderates retained control by an 18-13 vote, and how since the names of those voting on each side have come to light.

As the article points out, out of the 18 names retaining moderate leadership, two jump off the page -- Julia Lynn and Jim Barnett. Yes, the same Julia Lynn who won the endorsement of and took over for conservative legend Kay O'Connor in late 2006, winning the votes of precinct committeemen and women who were some of the most conservative in the state -- and after defeating two candidates on the first ballot, raised arms with Kay O'Connor in triumphant victory over the moderate faction (who were supporting Ron Wimmer). And yes, the same Jim Barnett who won the 2006 Republican nomination for Governor due to the enthusiastic support of many conservative activists -- and campaigned as a pro-life, low-tax, hard-charging conservative Republican.

Both of these individuals were among the 18 votes for liberal Republican leadership -- had they both voted for Susan Wagle, conservatives would have been just one vote short of the 16 needed to win -- and many feel there were a few other Senators waiting to be #16, but when Lynn and Barnett fell, there was no chance.

So what happened to Senators Lynn and Barnett, once seen as rising conservative stars? Did they suddenly have a revelation that Steve Morris and John Vratil were conservative leaders? Do they know something about Morris and Vratil that the rest of us don't? Did their political compass break? What happened?

Of course, nothing out of the ordinary happened. Steve Morris and John Vratil are still liberals. They are still the same Senators who pushed hundreds of millions of dollars in excess spending in budgets that put Kansas on the path to financial suicide -- budgets that Senator Lynn voted against, by the way. Remarkably, those same leaders whose policies Lynn rejected now apparently have the experience and "breadth of knowledge" on budget issues to win her vote:

“What I looked at was how much experience they had with the budget and their breadth of knowledge, and the current leadership obviously had a depth of operational knowledge,” Lynn told Kansas Liberty.

Huh? Operational knowledge in creating the fiscal pickle we're in, I guess.

Sometimes in politics you find yourself in bed with interesting people - it's part of doing business. But the amazing journeys of both Senators Lynn and Barnett are interesting case studies in how they simply used and manipulated conservatives to achieve power -- or, in Barnett's case, attempt to achieve power -- and then within a two year span, were essentially seen as betraying those people who supported them so passionately during their campaigns.

To be true, both Senators Lynn and Barnett are "conservatives when convenient."

In Senator Lynn's case, when 90 precinct committee people dominated by conservative activists were her gateway to power, she was a Kay O'Connor conservative -- and used her charm and personal appeal to win them over, convincing them she was one of them -- yet two years later, out of a perceived pathway to victory and then influence, voted for leaders who spend thousands of dollars every cycle trying to defeat the very type of candidate her original supporters thought they were electing back in 2006 -- and even when they cast their ballots for Senator Lynn this fall.

In Senator Barnett's case, when he was faced with a primary for Governor in a state where conservatives dominate primary elections, he convinced a legion of conservatives he was one of them and did so successfully -- winning the primary before losing in a landslide to Governor Sebelius. Now oddly, he votes for leaders who praise Governor Sebelius and who work steadfast along with her to implement the budgetary policies the state is now suffering from.

Putting aside the blatant disregard for principle for a moment, let us just consider the political thought process behind Lynn and Barnett's decisions to side with moderate leadership. Certainly, survival and influence-seeking are instincts that all politicians have. Coast to coast and indeed, in every nation, political leaders attempt to "catch the wave" of whatever political tide they sense is coming. From this standpoint, the Lynn and Barnett decisions are even more perplexing.

If moderate Republicans were on some rise to power in Kansas, perhaps in some way the decisions of Lynn (particularly, given her early association with O'Connor and the fact she owes her title to O'Connor and conservative precinct committee members) and Barnett to abandon and anger their conservative base would be somewhat understandable. Perhaps, say, if we were in the 1990's when Bill Graves was Governor and moderate Republicans held most of the statewide offices -- including Nancy Kassebaum, Jan Meyers, and others.

That, of course, is not where we are in 2008. Indeed, it is ONLY in the Kansas Senate that moderates have any power -- and they had to use campaign dollars and chairmanships to obtain it, as if you went solely based on how they characterized themselves, conservatives have about 18 or 19 of the 31 Republicans -- Morris and Vratil were simply able to buy..er...convince five of those Senators to vote for them.

In the rest of the state, with the exception of Congresswoman-elect Lynn Jenkins, who campaigned as a conservative, conservatives are on the rise:

- In the Kansas House, you had a leadership race between two conservatives -- Mike O'Neal and Melvin Neufeld.

- You have the likely emergence of conservative Sam Brownback as the frontrunner for Governor in 2010 and the probability he will be setting the agenda, as seen by the recent emergence of longtime staffer Amanda Adkins as potential Chair of the State Party.

- Conservatives maintained control of all four Congressional District parties.

- For the U.S. Senate, you have a potential primary battle between two conservative Congressman in Tiahrt and Moran.

- For the open Congressional seats, you have likely conservatives stepping up to the plate, as seen in District 1 with the emergence of Tim Huelskamp.

- Even in Johnson County, where many of the moderate Republicans in the legislature exist, it is moderate districts that are most vulnerable to Democrats -- seen by the losses in District 24 and District 19.

- When you look at potential "rising stars" in the Republican ranks, one would be hard pressed to find a true moderate whose path is going upward -- most point to conservatives like Mary Pilcher Cook, Lance Kinzer, Anthony Brown, Kasha Kelley, Jason Watkins, Ty Masterson, Tim Huelskamp, and others.

Yet Lynn and Barnett, who presumably made their decisions to anger their base in an exchange for having more political influence (or the perception of influence, perhaps?), chose to side with Morris and Vratil. Why?

Perhaps it is just an inability to see the forest through the trees -- the fact that even though they might have short term gain in stature or power (though in Lynn's case, all she got was two vice chairmanships), the long term consequences of essentially admitting your professed conservatism was really a ruse and angering your conservative supporters and colleagues might not be worth it.

Of course, this is just a sad reality of politics today. When a politician is simply going after fame and fortune or power and prestige, they are willing to be a human chameleon. They will be conservatives when it is convenient and then stop being conservative when that convenience ends in their eyes. We've seen it at the national level and now we've seen it in a remarkably blatant way here in Kansas.

Of course, what Lynn, Barnett, and others like them don't realize is that such politicians, when they act in such a manner, quickly become caricatures in the eyes of the public and even their colleagues. This road -- which, when traveled fully may even called "Blagojevich Road" -- is not a pretty one, as becoming a caricature in politics is never a good thing and is nearly impossible to reverse. You lose credibility, end up with few or no friends you can trust (as the ones you originally have don't trust you), and the road eventually leads to a dead end -- ironically having absolutely none of that precious power and influence you abandoned your principles for in the first place.

Politics, as with any other profession, should have a purpose. Are you in it for the game and the power or are you in it for the principles? Is it just about getting elected or is getting elected a means to a greater end? Do you have a moral and ideological compass, or are you simply there to achieve some manufactured notion of influence and power?

We believe that if one answers those questions in a way that points to a direction of principles and purpose, that credibility and trust will shortly follow, which will then be followed by a power and influence of a different sort -- the kind of power and influence that achieves meaningful results, not the kind of false power and self-promoting influence that our politics have been so grossly infected by.