Merit should be deciding factor in Kansas judgeships

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opinions

May 8, 2013 - 12:00 AM

Some members of the state Legislature want the final say on who sits on the Kansas Supreme Court as well as the Kansas Court of Appeals.
Jeff King, R-Independence, is pushing for such legislation and in his role as chairman of the Senate Judiciary Committee likely has a few favors to call on to make it happen.
Currently, the governor picks the justices from a pool recommended to him by a committee made of primarily attorneys.
That’s politics, too, you say. Well, yes, but not as much as it could be because those nominated must go through an excruciating vetting system that makes all but the best withdraw.
It was politics in the first place that made Kansas voters back in 1958 decide that a judge’s qualifications, not his or her political persuasion, should be the deciding factor to sit on either the Supreme Court or the Court of Appeals.
The case was the infamous “triple play” involving then-Gov. Fred Hall and William Smith, chief justice of the Kansas Supreme Court, and John McCuish, lieutenant governor.
Faced with defeat in the Republican primary, Hall worked it so he would become appointed chief justice of the Kansas Supreme Court upon the resignation of Smith, who was ill. McCuish then became governor for the remainder of Hall’s term — all of 11 days.
Kansas voters smelled a rat from the get-go and voted overwhelmingly for merit selection of state judges in 1958.
The system has since worked to everyone’s satisfaction until summer 2005, when the Kansas Supreme Court ruled the state must spend more on public schools. That ruffled legislators’ feathers. The comeback? Legislators would have say-so over who would man state courts.
The beauty of the current system is the balance of power. Kansas is governed by a three-legged stool: The legislative, executive and judicial branches.
But if the courts are made up of judges who owe their positions to lawmakers, an abuse of power is all but certain.
Ultra-conservative legislators, most notably King in the Senate and Lance Kinzer in the House of Representatives, want to dump the merit selection plan. Instead, they would replace it with appointment by the governor followed by Senate confirmation in the case of the Supreme Court, or confirmation by the entire Legislature in the case of the Court of Appeals.
The proposed amendment for the Kansas Supreme Court needs to be approved by a two-thirds majority of the Legislature to put it on the ballot. In the case of the Court of Appeals, only a two-thirds majority of lawmakers need make it happen. The public would have no say. The Senate already has approved the Court of Appeals measure; it has stalled in the House but could be resurrected as soon as today when the Legislature reconvenes.
If the Legislature eliminates merit selection for seats on the State Supreme Court, it would be the first in the country.
Being an outlier in a country based on democracy should send a message something’s amiss. Big time.
— Susan Lynn

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