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Kansas rides wave of judical selection changes

Renewed legislative efforts to change the way Kansas selects members for its highest courts are part of a recent wave of modifications sought nationwide to alter the composition of the state's judicial branch.

Despite resistance this legislative session against altering the system, supporters of the idea said Friday momentum is shifting in the state toward governor-appointed justices.

The Senate in January approved a proposed constitutional change to have the governor appoint members of the Supreme Court, subject to Senate confirmation. But the measure stalled in the House, and many legislators believed when they began their annual spring break in April that the issue wouldn't come up again this year.

But House Judiciary Chairman Lance Kinzer said he was optimistic that a compromise could be reached in the coming days.

“It's happening in states across the country. I've been working on it for a number of years,” the Olathe Republican said.

Bert Brandenburg, executive director of Justice at Stake, a national organization that advocates for merit selection of judges, said the current national trend to change judicial selection started about 10 years ago, when money started flowing into contested races in states where judges are elected.

“It's relevant because it represented that judicial selection was being discovered by national partisans and special interests,” he said. “Like any good fishing hole, once it's discovered there's no going back.”

Kansas isn't calling for direct election of judges, but Brandenburg said the proposal to give the governor's office more control inserts more politics into the process. He said that's dangerous because it infuses selections with ideological fights, especially when the governorship is held by one party and the legislative branch by another.

“It's the recipe for possible gridlock,” Brandenburg said.

In Kansas, Republican Gov. Sam Brownback enjoys a GOP-dominated House and Senate, both by comfortable margins.

Currently, an attorney-led nominating commission screens applications for Kansas appellate court vacancies and chooses three finalists, with the governor making the appointment from those three. There is no role for legislators. Defenders of the current system contend it minimizes politics, but critics say it's too dominated by attorneys and not open enough.

The appellate court nominating commission has nine members. Five are attorneys elected by other attorneys, with the remaining four appointed by the governor. As a compromise, the Kansas Bar Association had proposed expanding the commission to 15 members, with 11 appointed by the governor and legislative leaders.

House Minority Leader Paul Davis, a Lawrence Democrat, doesn't see the need for wholesale changes in the selection process and views it as a Republican power grab.

“It's obviously doesn't hurt to have a discussion every so often, but I think this is an attempt is being made to fix a system that's not broken,” Davis said.

Brandenburg said voters in Florida and Missouri have rejected ballot measures to change judicial selection. Measures have been debated in other states recently, including Tennessee this year.

Justice at Stake advocates for the merit selection process, arguing that a nonpartisan commission is “well positioned” to make decisions about who is fit for the bench.

“That's what you want, for it to promote quality over politics,” Brandenburg said.

Republican legislators unsuccessfully sought to change the court selection process in 2005 following a Kansas Supreme Court ruling ordering the state to increase school spending.

Kinzer said the issue is broader than one court ruling; rather, it's a sense of accountability to the voters.

“It's about improving the process and public support for the courts and enhancing the rule of law,” he said.

Earlier this year, Brownback signed a bill to have Court of Appeals judges appointed by the governor and confirmed by the Senate, with no role for the nominating commission. The change takes effect in July.

Voters in 1958 approved the current selection method for the state Supreme Court as an amendment to the state constitution. Kansas had previously elected the justices, though even after 1958, voters periodically decide whether to retain the justices and Court of Appeals judges.

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