One of the changes the new rightwing Legislature seems certain to make next year is to give the governor the power to appoint appellate court judges, subject to confirmation by the Senate. GOV. BROWNBACK and his fellow travelers can argue this result would be welcome and would reflect the will of a majority of Kansans. They have a valid point. Brownback was given a solid majority in 2010. The moderate Republicans in the senate were defeated despite vigorous, well-funded campaigns. The conservative majorities in both houses of the Legislature won election on ultra-conservative platforms. The people did speak.
Today those appointments are made by the governor from three candidates named by a nominating committee composed of five members of the bar and four gubernatorial appointees. The method, patterned after a Missouri law, was adopted for appointing justices to the Kansas Supreme Court by constitutional amendment in 1957 as a result of a scandal involving former Gov. Fred Hall. The method was applied to the naming of appellant judges by statute.
Gov. Sam Brownback and other conservative extremists don’t like the Missouri plan for naming judges because it insulates the courts from partisan politics. Under the Missouri plan the nominating committees tend to choose jurists who are not active in partisan politics so court decisions are more likely to be based on the law rather than ideology.
Conservatives argue the Missouri plan is not democratic. By giving the power of appointment to a nine-member committee, they say, the opinions of the rest of the state’s population are ignored. It would be fairer in their view to give the power to the governor, who was elected by a majority of the voters, subject to senate confirmation.
The consequence, of course, would be to hand the process over to partisans. Gov. Brownback has made it crystal clear his decisions are made on the basis of his ultra-conservative ideology. His court appointments would reflect that professed bias. The senate would concur. The moderate Republicans who would have prevented such a change in the law were defeated in the primary as a result of an all-out campaign against them by Brownback, the Kansas Chamber of Commerce and the Koch brothers. The people of Kansas voted for the far, far right. They were replaced by hard rock conservatives.
Judges guided by the law would be replaced by ideologues.
Whether Kansans like the pudding they have cooked for themselves remains to be tested. The coming two years will give them a taste.
— Emerson Lynn, jr.
