The candidates for governor in Kansas are sparring over taxes, health care and school funding. But in many ways there’s a more fundamental issue that separates Gov. Sam Brownback from his Democratic challenger, Paul Davis. Both stand on opposing sides of a running battle over how state Supreme Court justices should be chosen.
Lots of people are influential in one way or another, of course, but Kansas Supreme Court justices really do make a difference, says Michael Kaye, a trial advocacy professor at Washburn University School of Law.
“They have the ability to touch every aspect of everybody’s life in this state,” Kaye says.
Justices shape citizen’s rights as patients, parents, employees and spouses. Their decisions last, and they can have a momentous impact.
“Your children will be affected by judge’s rulings on such things as school finance,” Kaye says. “They will decide what criminal statutes are or are not constitutional.”
It was a big deal, then, when Brownback, on the Friday before Labor Day, stood in the chambers of the Supreme Court and made his first appointment to the tribunal.
“Selecting a judge is one of the most important thing a governor is called upon to do,” Brownback said, his voice echoing through the chambers. “Our judges must be wise. Our judges must be committed to the rule of law. Our judges must respect and honor the Kansas Constitution. Caleb Stegall is all these things, and he will serve our citizens well for many years to come.”
Stegall served as Brownback’s official lawyer until early this year. His path to the high court was unusual and it raises a larger issue, says Ryan Wright of Kansans for Fair Courts.
“To understand what’s happening with the Kansas judiciary, you have to understand who Caleb Stegall is,” Wright says.
At almost 43 years old, Stegall, could sit on the court for the next 32 years. (The retirement age is 75.) Before becoming a judge, he left a long written trail, staking out positions against some court-ordered school funding, so-called “right to die” measures and abortion.
As a lawyer in private practice, he defended former Kansas Attorney General Phill Kline before the Kansas Supreme Court when Kline was sued by Planned Parenthood over his handling of confidential records.
He has worked for Americans for Prosperity, the Koch brothers’ political organization, but was also a leader of Audubon of Kansas, an environmental group.
Changing the process
In October 2012, Stegall submitted an application to the Kansas Supreme Court Nominating Commission for a vacancy on the Kansas Court of Appeals. The commission, however, failed to select him as a finalist.
The commission is a group of four lawyers selected by other Kansas attorneys, four non-lawyers selected by the governor and a lawyer chairman who’s elected by lawyers in a statewide vote.
The group vets candidates for the high court and selects three finalists for the governor to choose from. The idea is that lawyers are well qualified to identify people with the sharpest legal minds. It’s called “merit selection” and 22 states use some version of it.
For decades, Kansas has employed merit selection to fill vacancies on both the Supreme Court and the Kansas Court of Appeals. But that stopped, Wright says, after Stegall struck out with the nominating commission.
“The entire process was essentially changed just to get Justice Stegall through the system,” Wright says.
Led by Brownback, the Legislature last year switched to a system more like the one used at the federal level, allowing the governor to nominate judicial candidates and giving the Senate the power to ratify them.
That done, Brownback chose Stegall to fill a new position on the Court of Appeals, and the Senate ratified him. Stegall was on the bench.
The selection system for the Supreme Court was harder to change, however, because it’s enshrined in the Kansas Constitution, which requires a two-thirds vote in both chambers to amend. Democrats in the House, including Paul Davis, voted with some moderate Republicans to preserve merit selection. That was enough to block the change sought by the governor, his legislative allies and outside groups like Americans for Prosperity.
This year, the Legislature passed and Brownback signed legislation stripping some of the Supreme Court’s authority to administer the state’s judiciary. To some observers, it looked like retribution for earlier Supreme Court rulings on school funding and the death penalty.
“I think people in Kanas should be pretty concerned about the political attacks on the judiciary,” says Matthew Menendez of the Brennen Center for Justice at New York University Law School. “The amount of political pressure being put on the court raises serious concerns about the proper separation of powers in the state.”
The Kansas ‘triple play’
Menendez says Kansas is one of a handful of states where politicians are angling to drain power from the judicial branch, and he says ending merit selection is part of it.
“I don’t think it’s necessarily surprising that the governor would like to have more authority,” Menendez says. “Typically governors would like to have more authority to do everything. I think it’s useful to recall how Kansas’ current system came into play.”
Menendez is referring to a brazen political scheme known as the Kansas “triple play.” In 1956, a one-term governor named Fred Hall lost his primary for reelection. Just before the end of his term, the chief justice of the Kansas Supreme Court, Bill Smith, a solid Hall supporter, stepped down. A few days later Hall resigned. Hall’s lieutenant governor, John McCuish, took over for the remainder of Hall’s term and, in his one official act as governor, appointed Hall to the Kansas Supreme Court.
Outrage followed, and a couple of years later Kansas amended its constitution to become the second state, after Missouri, to adopt the so-called merit system of selecting state Supreme Court justices. It’s also called the Missouri Plan, and Kaye says it’s a reason the state has received very high marks in the past for how it selects its appellate judges.
“It’s worked up until now,” Kaye says. “It’s worked very well up until now.”
A Case for changing the system
Kaye says the system isn’t perfect; it’s just better than holding contested elections for Supreme Court judges, as 22 states do, or the federal model, currently used by four states.
Stephen Ware, a law professor at the University of Kansas School of Law, disagrees. He says politicizing judiciary selection in Kansas would represent an improvement.
“Judges make law,” Ware says. “It’s inevitably a somewhat political office. Where in a democracy like ours, it really ought to be one person-one vote in selecting those judges, as opposed to giving lawyers special powers.”
Ware argues that vesting all the power to choose judges with elected leaders would bring more accountability to the process.
“Voters can see who their executive has nominated and voters can say, ‘You know I’m going to count this in favor or against that incumbent when the next election comes around,’” Ware says.
Brownback chose Stegall for the Supreme Court after he was selected as one of the three finalists by the Supreme Court Nominating Commission. It’s not clear why the commission changed its mind about Stegall.
But the governor, if he’s reelected, would prefer not to deal with the commission the next time he’s presented with an opportunity to select a Supreme Court judge. Davis, on the other hand, says he’s not interested in exerting more political control over the judiciary.
It’s a difference in approach that could keep affecting Kansas long after the political careers of either candidate for governor.