As Republican Gov. Sam Brownback’s deadline for nominating a new Kansas Court of Appeals judge nears, a key GOP legislator is making a very public effort to counter criticism that the Senate’s consideration of the appointment will be rushed.
Brownback has until Aug. 29 to name his pick for a new seat on the state’s second-highest court. Normally, senators would consider the nomination when the Legislature opens its next annual session in January, but lawmakers are convening a special session Sept. 3 and will be legally obligated to review pending appointments.
The governor called the special session to repair a law allowing convicted murderers to be sentenced to at least 50 years in prison. But with the special session opening only a few days after the appointment deadline, the Senate’s top Democrat has suggested Brownback’s real goal is to limit scrutiny of his court nominee.
Brownback’s aides say the idea is ridiculous, and Senate Judiciary Committee Chairman Jeff King has promised that the prospective Court of Appeals judge will be the most-thoroughly vetted nominee in decades. King, an Independence Republican, had three prominent legal scholars draft a six-page questionnaire for the nominee that demands a detailed career history, disclosures of past legal conflicts of interest and documents from public appearances.
“We want this process to be as thorough as possible and as open as possible,” King said. “We would do this questionnaire whether we had five months or five days.”
Brownback’s appointment to the Court of Appeals is getting an unusual amount of scrutiny because it’s the first under a law that took effect in July, having the governor nominate the court’s judges, subject to Senate confirmation. Under the old system, still in place for the Kansas Supreme Court, a nominating commission led by lawyers screened applicants and named three finalists, with no role for lawmakers after the governor’s appointment.
Supporters of the change in the selection process argue it’s more open because elected legislators review the nominee and has open debates. The nominating commission interviews in public and discloses the names of the finalists, but its deliberations occur in private meetings.
Backers of the old system believe it minimizes the politics involved in judicial appointments and strongly criticized Brownback for refusing to release the names of the applicants for the Court of Appeals seat. The nominating commission has released such a list for more than 30 years.
“There’s an intent here to try to quell any sort of organized opposition to whomever he selects,” said Senate Minority Leader Anthony Hensley, a Topeka Democrat.
Hensley called on the governor to nominate a new Court of Appeals judge by Aug. 9 to give senators time to vet the appointment. Brownback spokeswoman Eileen Hawley said the governor wouldn’t set an “artificial” deadline but was moving aggressively to pick someone.
“We certainly will make sure there is enough time for that candidate’s name to be out there prior to the session,” Hawley said.
King’s committee will review the Court of Appeals appointment, and last week, he asked Deanell Tacha, Stephen McAllister and Reggie Robinson to develop the questionnaire for the nominee.
Tacha is former chief judge of the 10th U.S. Circuit Court of Appeals and now dean of the law school at Pepperdine University in Malibu, Calif. McAllister, the state’s solicitor general, is a professor and former dean at the University of Kansas law school. Robinson is a former president of the Kansas Board of Regents and director of the Center for Law and Government at the Washburn University law school in Topeka.
King sent their draft questionnaire to his committee and Senate leaders and then made it public. He invited senators to suggest additional questions. If the nominee has ever testified before a governmental commission or agency – or submitted policy memos – he or she is supposed to provide documents or a recording.
“I hope it is the precedent,” King said. “I hope that this process is so open and thorough and universally accepted that, when it’s used in the future, it’s the normal course of business.”
But time or the amount of questions for the nominee aren’t the only issues for Hensley and other critics of the new process for selecting Court of Appeals judges. Republicans hold a 32-8 majority in the Senate, and most of the GOP members are Brownback’s fellow conservatives.
“It will have the appearance of a thorough vetting, but whoever the governor nominates is a done deal,” Hensley said. “The Republican majority in the Senate is going to rubber-stamp his appointee.”
King’s actions last week were a public show of following through on his counter-promise of a deep vetting of the Court of Appeals nominee, no matter how the Senate vote turns out.