New plan for Kansas judiciary selection emerges

Legislators who believe the Kansas Senate should have the power to confirm appellate court judges, including Supreme Court justices, have a new plan that they hope will get approved before lawmakers adjourn this year, an influential senator involved in drafting the measure said Monday.

Many legislators, particularly conservative Republicans, have pushed to change the judicial selection process in recent years following Supreme Court rulings on abortion and education funding. They argue the current process involving a selection committee favors well-connected, often liberal or centrist attorneys and leaves out elected officials, but backers say it focuses on candidates' experience and avoids politics.

Senate Judiciary Committee Chairman Jeff King, who provided exclusive details of the new proposal to The Associated Press, said the plan would allow the Senate to vote on the governor's appointments to the state Supreme Court and the Court of Appeals.

The plan would retain the nominating commission that screens applicants but change its membership so that attorneys elected by other attorneys wouldn't have a five-member majority, as they do now. Instead, the governor would appoint five of the nine members, instead of just four.

King, an Independence Republican who also serves as Senate vice president, outlined the proposal a day before the Legislature's staff was to finish drafting it. He said the proposal emerged from discussions among legislators who were hoping to find a compromise with the Kansas Bar Association.

King said the Bar Association's board is supposed to vote on the proposal Tuesday afternoon. If the group backs the measure, King said, lawmakers would try to get both the House and Senate to approve it in the final days of their annual session. That would allow it on the ballot for voters' consideration in 2014. But constitutional amendments must be adopted by two-thirds majorities in both chambers before they go to voters.

Under the state's current system, the attorney-led nominating commission names three finalists for each appellate court vacancy, then the governor appoints one of those finalists to the bench – with no role for legislators. Supporters argue the process minimizes the politics in picking judges, but critics say it's not open and accountable enough to voters.

“This is a culmination of our whole year of discussion, a culmination of our good-faith efforts to take this issue to the voters in a way that both the Bar Association and the Legislature and the governor can all support, together,” King said during an interview.

Dennis Depew, a Neodesha attorney and the Bar Association's president-elect, said he isn't sure whether the association's board will back the proposal. He said past votes on such proposals have been close.

“It's a very divisive issue,” Depew said. “I can't say that I have any idea of how it's going to turn out.”

King said that if the Bar Association's board doesn't back the proposal, lawmakers pushing for a change would drop the issue for the year and renew the debate next year – with all options back under discussion.

The Senate adopted a proposed constitutional change in January to have appellate court judges appointed by the governor and confirmed by the Senate, eliminating the nominating commission from the process. But the measure has stalled in the House.

The process for picking Supreme Court justices was itself the result of a constitutional change approved by voters in 1958 to end the election of the high court's members. But the process for picking Court of Appeals judges requires only a change in state law, and Republican Gov. Sam Brownback signed a bill to have those judges appointed by the governor and confirmed by the Senate, starting in July.

The proposal outlined by King would apply to both appellate courts. Also, the revised nominating commission would submit five names to the governor, instead of three.

“You have the best of both,” King said of the new proposal. “The system's more accountable to the public but still retains the scrutiny of the nominating commission.”

Although the Bar Association supports the current “merit selection” system, it had offered proposals to alter the nominating commission so that attorneys would no longer be a majority. Association President Lee Smithyman, an Overland Park attorney, said last week that it could accept a plan that included Senate confirmation.

Depew said the Bar Association is willing to consider changes because of legislators' interest.

“We also understand that political reality has to come into play,” he said.

The Senate plan is SCR 1601. Kansas Legislature: http://www.kslegislature.org . Text of new law on the Court of Appeals: http://bit.ly/17K1mBV . Kansas Bar Association: http://www.ksbar.org .