News from the Capitol--February 8, 2016

We are now about ¼ of the way through the session and we continue to make progress in committee on a number of bills, including the budget. However, this past week, much of the attention was focused on the issue of judicial selection.  This issue is one of the most significant topics before us, as it impacts every other issue we deal with. Whether you’re talking about school finance, education in general, abortion, criminal law, the death penalty, or even the power of the purse – who are judges are and how they are selected has a profound impact on what we do in Topeka.

As such, I’m going to discuss it exclusively in this newsletter, and will return to other subjects next week. This week, we debated HCR 5005, which proposed to change the method of Supreme Court selection from the current method of a nominating commission to one based on the federal model, where the governor would select the nominee of his/her choice, subject to Senate confirmation.  The voter retention system would remain as it is now, with voters having a say every six years.

The measure did earn 68 votes, but 84 were needed to pass as this was a Constitutional Amendment, requiring a 2/3 majority to pass and then approval by the people of Kansas in November. The Senate has at least 27 Senators willing to pass it, so the question was whether the House would.  Unfortunately, we fell short.

I am disappointed in this action because the federal model is a reasonable proposal that would produce a balanced court, but most importantly it would place the judicial branch in a place where it had not been since the 1950s – one with accountability to the people of Kansas.

Many people do not realize that for the first century of Kansas history, we actually elected our Supreme Court justices directly. It was only until a political scandal – known as the Triple Play – happened that the system was changed.  Interestingly, the direct election of judges – both on a partisan and non-partisan basis – is still one of the most common methods in the country today. In fact, for district judges in several areas of our state, this system still exists even here in Kansas.

While a return to direct elections of Supreme Court justices is not something most support, unfortunately, the system chosen over 50 years ago – and the one we’ve used since – has its own set of problems that have been demonstrated repeatedly to produce serious consequences, both in terms of the kinds of rulings being issued and related to that, the trust the people have in their courts.

That is why the federal model, which has been enshrined in our nation’s history since her very founding, represents the best solution towards reforming our courts to a point where intellectual diversity and respect for our judicial branch are once again present in Kansas.

Alexander Hamilton, perhaps one of the most brilliant of the Founders, discussed the federal model of judicial selection in Federalist Paper No. 76. He stated that in placing the responsibility of selecting a nominee in one person, the executive, that executive would be acutely aware that his/her own reputation is on the line. This would help to focus them on the merit, and exclude nominees of dubious quality. He said, “The possibility of rejection would be a strong motive to care in proposing…” and keeps them from “betraying a spirit of favoritism…”  So the executive will necessarily want to choose candidates of “unassailable credentials”, since his/her reputation will be on the line, and there could be consequences to being rejected by the Senate or by the voters.

The principles Hamilton spoke about are in stark contrast to the insulated system we have now, in which a majority of the nominating commission is selected by attorneys, attorneys who have no accountability to the public yet have a direct stake in the outcome of the courts and the decisions judges render from the bench. Because there is no accountability, the deck is stacked in favor of a certain brand of judge who then produces a certain type of ruling, often far out of the mainstream. The reason is because there is no effective check or balance against the courts, thereby giving them freedom to make the rulings they want to make.

Kansas is the only state in the country to do it this way, yet it is very entrenched and though we are getting closer every day to changing it, getting from where we are now to the super majority we need is going to be very difficult. However, I feel that as citizens understand the facts behind the system we have now and compare it to the federal system, they will demand their legislators back the federal alternative.