The Kansas House on Wednesday debated a proposed constitutional amendment to change the way state Supreme Court justices are selected, but an initial vote fell short of the two-thirds tally needed.
Some Republican lawmakers want to drop the current nominating commission and give the governor full authority to appoint justices, subject to Senate confirmation.
But some opponents of the change said the move Wednesday was held for election year purposes to force a vote that could be used against moderate Republicans and Democrats during the 2016 campaign. All Kansas House and Senate seats are up for election this year.
“In my opinion, this was nothing more than political theater designed to set up the election cycle,” Rep. Melissa Rooker, a Fairway Republican, said after the debate. “I’m optimistic we have the votes to hold the line.”
The measure passed 69-53, but that was short of the 84 votes, or two-thirds, needed. A final vote is scheduled for Thursday. The proposal also would need two-thirds approval in the Senate before being placed on the ballot for a November statewide vote.
Currently a nominating commission screens applicants for a Supreme Court vacancy and chooses three finalists. The governor selects from the three without legislative confirmation. The nominating commission has nine members, and five are lawyers elected to serve on the commission by lawyers. The governor selects the four others.
Republican Gov. Sam Brownback and his allies in recent years have bristled at Kansas Supreme Court rulings on such issues as school finance, abortion and the death penalty.
In a letter sent to House members Tuesday, Kansans for Life, an anti-abortion group, urged support for the proposed amendment and said failure to support it “will be considered incompatible with our standards for endorsement in the upcoming electon.”
In Wednesday’s House debate, Rep. James Todd, an Overland Park Republican, said the current Supreme Court justice selection process is undemocratic and depends heavily on a commission dominated by lawyers.
“Our current system pushes the people aside and implies they or their representatives are unqualified to weigh in on something so important,” Todd said.
The proposal would give Kansans the chance to decide if they prefer a federal model, in which the president appoints and the Senate confirms, he said.
“That model has served our nation well throughout its history and would serve Kansas equally as well,” he said.
Rep. John Rubin, a Shawnee Republican, also favored the proposal, saying the nominating commission process is “highly secretive.” And no one knows whether Kansans prefer the current selection process, he said.
“Why would any of us not want to let the people decide this issue?” Rubin said.
But Rep. John Carmichael, a Wichita Democrat, said the nominating commission works well because it provides a merit system for selecting justices, producing the best qualified nominees.
Carmichael rejected the idea that the process is undemocratic.
The governor, elected by the people, not only has four appointments to the nominating commission but also makes the final selection, Carmichael said. And justices stand for statewide retention elections every six years, he said.
Rep. Steven Becker, a Buhler Republican, said he understood that many lawmakers don’t like the Supreme Court’s recent decisions on such matters as school funding and capital murder cases, but that is a poor reason to change the selection process.
“I think it’s a huge overreaction to a court that’s not doing what we want them to do,” said Becker, who noted that the selection process has worked well for years without scandal. “If it ain’t broke, don’t fix it.”
In response to the charge that Wednesday’s action was for political purposes, House Speaker Ray Merrick, a Stilwell Republican, said, “The vote today was about giving the people of Kansas a voice in changing the current lawyer-controlled judicial selection method to a more transparent, democratic system.”