New Appointment Holds Clues to Brownback Supreme Court Plan

Mar 16, 2015

Last week, Kathryn Gardner was the second judge confirmed under Kansas’s new method of selecting appellate court judges, and her confirmation gives the state a look at the system Gov. Sam Brownback wants to use for choosing state supreme court justices.

Confirmation by a process "comfortable" for Kansans

Washburn law professor Michael Kaye says he thinks Gardner was a good choice.

“When I think of her temperament, I think she would be an excellent judge,” he says. 

Kaye has worked with Gardner, and he believes her when she says she’ll take a restrained approach to the bench — that she sees herself as an umpire, not someone writing the rules. 

Kaye says Gardner’s 14 years working as a law clerk for U.S. Senior Judge Sam Crow in Wichita is excellent preparation for her new duties on the Kansas Court of Appeals. 

Kaye likes the outcome, but he does not like the process.

"She is an excellent choice, but she should be confirmed by the process that we as Kansans, as our society, feel comfortable with and trust,” says Kaye.

Merit Selection versus the Federal System  

Kansans, notes Kaye, are accustomed to a process called Merit Selection. Adopting it was the state’s response to a 1950s scandal, in which an outgoing Kansas governor resigned and arranged to have his successor almost immediately appoint him to fill a vacancy on the Kansas Supreme Court, left by a secretly planned retirement of the Chief Justice. It was called the Kansas Triple Play

Kansas approved a constitutional amendment to adopt a method called, alternately, the Missouri Plan, or Merit Selection for choosing state Supreme Court Justices. The state later adopted the same system, by statue, for choosing appellate court judges.

In Kansas, a nine-member panel, including five lawyers and four people chosen by the governor, pick three applicants for the governor to choose from. Governors are limited to nominees that lawyers deem worthy, so lawyers get a lot of say under this system.

Brownback and the legislature changed the selection system for appellate court judges. Since that method was adopted as a law, not a constitutional amendment, changing it was relatively easy. They replaced the old system with something often called the Federal System. As you might guess, it mirrors the way of doing things in Washington, D.C., where the executive —the governor in this case — picks a nominee, but then the Senate votes whether or not to confirm. Brownback wants the same system for choosing state supreme court justices.

"At the core, this is about power," asserts Fort Hays State political science professor Chapman Rackaway. "This is about the governor consolidating his ability to put people in the court that satisfy his criteria, and those criteria are ideological."

Two judges, one Christian college

Rackaway says taking the nominating commission out of the process gives the governor enormous sway.

Brownback’s first two picks for the court of appeals, Gardner and Caleb Stegall (who has since gone on to the Kansas Supreme Court) share almost exactly the same educational background. Both attended KU Law School, after graduating from Geneva College.

Geneva is a small Christian school in Pennsylvania. According to the school’s website, Geneva holds that the Bible is the "perfect, inspired Word of God" and sciences, like biology, are examined there through a biblical perspective. Rackaway doesn’t think it’s a coincidence. 

“This is exactly the kind of thing we could see is the governor picking people based on a particularly specific set of ideological expectations and standards, set exclusively by the governor and his advisors,” says Rackaway. 

Senate leadership is currently aligned closely with the Governor ideologically, he says, and hence it isn’t a major check on his nominees. 

Emporia State political science professor Michael Smith says that changing the selection system for the Kansas Supreme Court in the current political landscape would pave the way for new justices who would move Kansas to the right for years to come.

“Conservative judicial activism,” predicts Smith. “Rule very literally on the writing of the Constitution, in such a way that you argue government doesn’t even have authority to do certain things, and by those means overturn public policy."

Judicial discretion and ideology

But there is absolutely nothing wrong with judges making decisions that reflect the political views held by elected officials, according to Kansas University law professor Steve Ware.

“State supreme court justices have tremendous lawmaking discretion. That’s built into our system for centuries. It’s how it has to be. It’s how it’s always been,” says Ware.

Ware says serving as a state supreme court judge is fundamentally different than working as a trial court judge. Trial judges need above technical expertise to sort out complex questions of law. 

“Whereas, state supreme court justice, you’re getting big policy issues at that level. The kind of cases that rise up to state supreme court, sometimes have a lot of discretion of pushing the law in one direction or another, for public policy goals. And so it really is a lawmaking position. To be a state supreme court justice is to be a law maker,” asserts Ware. 

Of course governors and presidents never talk this way publicly about nominees. Ware says that many people perpetuate a myth that judges are just umpires. But, he says, if you once accept that supreme court justices make law, then it follows that selecting them should be democratic. Ware says merit selection gives vastly unequal power to lawyers. He doesn’t like the idea of just straight up electing judges, as some states do, because that can make for a volatile legal climate.

“On the other hand, nor is it healthy for the law to be totally isolated, and immune from the democratic will of the people," he says. 

So Ware says the Federal System, where elected senators have to go on record supporting or opposing a nominee, is the “least worst” way to pick judges.  

“Who’s on record as voting for or against the applicant? That’s the public moment of accountability. And Senate confirmation has it, and nominating commission doesn’t,” says Ware.

Changing the way state supreme court justices are chosen would require a constitutional amendment, which takes a 2/3 vote in both legislative chambers, and then a vote of the people. Though there may not currently be that kind of support in the Kansas House, you can expect a push on this issue this spring.