to publicly disclose the names of applicants for a new seat on the state’s second-highest court.
The group’s president, former Democratic state Rep. Dolores Furtado, said Monday that a new process enacted by legislators this year for picking Court of Appeals judges is “definitely less open” than the previous method. The law took effect this month, and Brownback rejected the league’s request late Friday.
Previously, a statewide judicial nominating commission led by attorneys screened applications for the Court of Appeals and named three finalists, and the governor appointed one, with no role for legislators. Under the new process, the governor will make appointments to the Court of Appeals, subject to Senate confirmation, with no role for the nominating commission.
Brownback called the new system “a reasonable process,” and his spokeswoman, Eileen Hawley, it will be transparent and accountable because the Senate’s discussions of court nominees will be open to the public. Hawley noted that a similar process has been followed for picking federal judges since the U.S. Constitution’s ratification 225 years ago, and Republicans who support the change argued that the old Kansas process – still in place for the state Supreme Court – is dominated by a small group of attorneys.
But the Republican governor has faced criticism because the nominating commission had released names of appellate court applicants since 1981. In recent years, the commission also has opened its interviews with candidates to public, though deliberations on naming finalists were closed. Supporters of that process contend it minimizes the politics involved in judicial appointments.
Furtado filed a request for the names of applicants for a newly created 14th position on the Court of Appeals last week under the Kansas Open Records Act. She served in the Kansas House in 2009 and 2010, representing a district centered on her hometown of Overland Park.
“The league is concerned about the lack of public access to the information so that there can be confidence in the process,” she said in a telephone interview.
Brownback plans to take applications for the Court of Appeals position until July 31 and has until Aug. 29 to name the new judge. The Senate will have 20 days once the Legislature convenes in January to consider the appointment; otherwise, it will be considered approved.
In a short letter to Furtado dated Friday, the governor’s appointments director, Kim Borchers, said the names of the applicants “are not subject to the Kansas Open Records Act.” She cited a provision in the law that allows government agencies to close personnel records for both state employees and “applicants for employment.”
Brownback’s stance also is in keeping with how Kansas governors have handled potential candidates for their Cabinets or other major appointments. Brownback said keeping the names confidential helps recruit high-quality candidates.
“Often, individuals in that setting, they don’t want their name out publicly for a while until they can see how this is going to move forward, because otherwise it impacts on where they currently are,” the governor told reporters after an event in Topeka.
The process for picking state Supreme Court justices hasn’t changed because it’s spelled out in the Kansas Constitution rather than state law.
A constitutional amendment must be approved by two-thirds majorities in both houses and then a simple majority of voters in a statewide election. Supporters of changing the selection process for the Supreme Court, while a majority in the Republican-dominated Legislature, didn’t have the necessary supermajority in the House.