Before there was the 1958 constitutional amendment that mandated how Supreme Court justices in Kansas were to be selected, two years earlier, there was the infamous “Kansas triple play,” a shenanigan that boggles the mind.
The incumbent Gov. Fred Hall was defeated in the 1956 primary by Warren Shaw. Shaw then lost to George Docking in the general election. Then, on Dec. 31, Chief Justice William Smith resigned from the Supreme Court, allegedly because of poor health. Hall, who had his eyes on the chief justice’s job, resigned as governor before Docking took office. Then, Lt. Gov. John McCuish, who became governor, immediately appointed Hall to the now vacated Supreme Court seat. Voila! The “triple play” was complete. It was not illegal. It was ethically a lousy way to pick a Supreme Court chief justice.
Kansans were disgusted. They passed a constitutional amendment two years later that described how Supreme Court justices were to be appointed. That method is still with us and has worked well for 58 years. Nine individuals — five attorneys selected by other attorneys and four non-attorneys appointed by the governor — nominate three individuals to the Supreme Court. The governor then picks from the three.
Gov. Sam Brownback and his allies in the Legislature hate this method for one reason: They do not have enough control over the selection process. They want a different kind of “triple play.” The state would be run by a conservative governor, a conservative Legislature and a conservative Supreme Court. So much for checks and balance. The movement toward making that constitutional change lacks enough votes in the Legislature. Frustrated conservatives want voters to throw out four of the five Supreme Court justices up for retention election in November. They claim they are too liberal and, thus, should be replaced by conservatives.
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Granted, six of seven justices were picked by Democratic and moderate Republican governors. So, indeed, they are to the left of today’s Legislature.
The court’s record on death penalty cases is clear. It seems to find ways to reverse sentences, even the convictions in the gruesome murders by the Carr brothers in Wichita in 2000. But is that enough to throw out the justices who voted against the death penalty? Absolutely not.
The Kansas Supreme Court cannot be viewed as one-dimensional. There is so much more to be considered. Take, for example, its courageous rulings on school funding.
The Supreme Court has come to the rescue of underfunded schools, facing down recalcitrant legislators who have little use for public education. The Supreme Court recently ruled that schools in Kansas were not being treated equitably. The justices even threatened to close schools if this were not fixed. It got fixed.
The court, likely in November, will rule all schools in Kansas are not being funded adequately. In an act of revenge for this “activism,” conservative extremists have targeted four justices for ouster by voters. The Carr brothers is a decoy for the real motive, which is to neuter the Supreme Court.
Injecting politics into an independent judiciary could be dangerous. That certainly would have a chilling effect on future Supreme Court justices.
If Kansans want more conservative justices, keep electing conservative governors. That’s the right way to do it.
Steve Rose, longtime Johnson County columnist: firstname.lastname@example.org.