TOPEKA – Kansas Supreme Court decisions in school funding and death penalty cases show that its justices aren’t as competent as federal judges and point to a need to change how they are selected, Secretary of State Kris Kobach told legislators Thursday.
Kobach was among the witnesses testifying during a Kansas House Judiciary Committee hearing in favor of overhauling the selection process.
Another advocate was Larry Heyka, of Manhattan, whose son, Brad, was murdered in Wichita in December 2000. The elder Heyka was upset by the Supreme Court’s decision last year to overturn the death sentences of two brothers convicted of the killing his son and three others in a snow-covered field after robbing them and forcing them to perform sex acts.
Kobach, a former law professor, referenced the same capital murder case, of brothers Reginald and Jonathan Carr, as a decision showing that the Kansas Supreme Court’s members are not as well qualified for their jobs as federal judges are for theirs. Kobach also criticized a 2005 decision ordering the state to boost spending on public schools and said even if he had wanted that result, “I could write a better opinion.”
“The status quo produces mediocre results,” Kobach told the committee, arguing that the governor should appoint justices, subject to Senate confirmation, similar to how federal judges are appointed.
Under the current system, applicants for Supreme Court vacancies are screened by a nominating commission led by attorneys elected by other attorneys. The commission names three finalists for each seat, and the governor picks one, with no role for legislators.
Supporters told the committee the current system minimizes partisan politics in selecting justices and shouldn’t be changed. Voters amended the state constitution in 1958 to set up the system, abandoning partisan elections.
“What we all desire are fair and impartial courts,” said Gerald Green, a Hutchinson attorney who is president of the Kansas Bar Association.
The hearing came a day after Supreme Court Chief Justice Lawton Nuss told reporters that the state has “a great system” for picking the court’s members.
“It is certainly worth keeping,” he said. “I don’t see anything broken with it.”
The committee is reviewing multiple proposals for changing the system, all of which would require amending the state constitution. One measure would create the federal-style system Kobach favors, while another would have partisan elections to select Supreme Court justices.
Gov. Sam Brownback, a conservative Republican like Kobach, is pushing for change, arguing that Kansas needs a “more democratic” system. The anti-abortion group Kansans for Life and the small-government, anti-tax group Americans for Prosperity also back change.
Four of the Supreme Court’s seven members were appointed by Democratic governors. Two, the most senior, were appointed by moderate GOP Gov. Bill Graves. Justice Caleb Stegall was appointed by Brownback last year and once served as his chief counsel.
With the current system, voters decide every six years whether a justice remains on the bench. No justice has been removed since the current system was adopted.
However, last year, Justices Lee Johnson and Eric Rosen received less than 53 percent of the vote, the lowest percentages since 1958. Family of the Carr brothers’ victims formed a group to oust the justices, and Brownback publicly backed the effort. The court ordered new capital trials for the Carrs, but the brothers remain in prison on other charges upheld by the court.
“Quite possibly, it would be better if they were elected officials that would have to campaign and give voters the opportunity to assess their viewpoints, values and ideals,” Larry Heyka said.