Kansas soon to compare, contrast court selection ways
Kansas soon to compare, contrast court selection ways
By JOHN HANNA
AP Political Writer
TOPEKA (AP) — Kansas Gov. Sam Brownback's allies and critics have waged an intense public debate over recent changes in picking state Court of Appeals judges, but Kansans soon should have a real-world contrast between the new system and the one it replaced.
The state Senate last week confirmed Brownback's chief counsel, Caleb Stegall, to a new seat on the Court of Appeals under a law that took effect in July. Brownback advocated changing the state's judicial selection system, and the new law allows him to appoint the judges on the state's second-highest court, subject to Senate confirmation.
But Brownback and other conservative Republicans weren't successful in changing the selection system for the Kansas Supreme Court. It still follows the old method, in which an attorney-led nominating commission screens applicants for vacancies and names three finalists, with no role for legislators after the governor's appointment.
And a state Supreme Court vacancy is likely next year. Justice Nancy Moritz was nominated last month by President Barack Obama to the 10th U.S. Circuit Court of Appeals, based in Denver. While Obama is a Democrat, the nomination drew the immediate support of Jerry Moran, one of the state's Republican U.S. senators, who said it resulted from "many months of serious negotiations" with the White House.
With Stegall's nomination and confirmation still relatively fresh, Kansans will be able to judge whether, as Brownback's allies assert, the new system is more open and accountable to the public or, as the governor's critics contend, the old system was far less political.
"It's going to be an excellent opportunity for the state, the press and the public to compare and contrast the two systems," said Dennis Depew, a Neodesha attorney who serves as president of the Kansas Bar Association, which favors the old system.
Kansas has different selection systems for each appellate court because the process for filling Supreme Court vacancies is spelled out in the state constitution, a byproduct of the high court's status as an institution born with statehood in 1861. But the Kansas Court of Appeals was created by a 1975 law to ease the higher court's workload.
Majorities in both chambers of the GOP-dominated Legislature favored changing the judicial selection process for both courts, as did Brownback. But amending the state constitution takes two-thirds margins in both chambers, then approval by a simple majority of voters in a statewide election. And Democrats and moderate Republicans had enough votes in the House to keep a constitutional amendment from passing there earlier this year.
Supporters of change pushed ahead successfully with altering the selection system for the Court of Appeals while negotiations with the Bar Association over a single system for both appellate courts continued. The latter effort failed.
House Judiciary Committee Chairman Lance Kinzer, an Olathe Republican, said he and other supporters of revising the judicial selection process will be drawing attention to the differences between the two systems.
"We don't ever get this in other policy areas," Kinzer said. "It's unique to see the two processes operating in parallel."
And the differences will be apparent the moment Moritz leaves the state Supreme Court and the nominating commission takes applications.
For three decades, the commission has released the names of all applicants. In contrast, with Stegall's nomination to the Court of Appeals, Brownback refused to disclose any names before announcing Stegall's nomination and still won't identify the other candidates.
He's said releasing the names will discourage qualified applicants from coming forward, but he's been criticized for the move.
His office said 18 people originally sought the Court of Appeals seat, though five of them didn't complete the paperwork or withdrew, leaving 13 to be interviewed. Kansans will know exactly how many people seek to replace Moritz on the Supreme Court — at least an anecdote for testing Brownback's contention about the harm in releasing names.
Critics of the old system have noted that five of the nominating commission's nine members are attorneys elected to the panel by other attorneys. The debate over judicial selection often centers on whether that fact leaves a special interest in control, as Brownback and his allies say, or checks politics, as the governor's opponents maintain.
The nominating commission conducts public interviews with the candidates, though its deliberations in naming finalists are closed. Stegall was a candidate for two previous Court of Appeals vacancies, and the commission's questions touched on the 41-year-old's relative youth in a pool that included lawyers who'd been practicing twice as long.
Stegall faced questions from the Senate Judiciary Committee last week about his prospective judicial philosophy, as well as past writings on social and political issues. The committee discussion that came ahead of approving his nomination was public, and the full Senate debated his nomination for more than an hour.
"I think you're going to be able to compare and contrast a great deal," said Senate Judiciary Committee Chairman Jeff King, an Independence Republican.
Political Writer John Hanna has covered Kansas government and politics since 1987. Follow him on Twitter at www.twitter.com/apjdhanna.