Barbara Shelly

Brownback’s poor excuses for secrecy on judges

Kansas Gov. Sam Brownback
Kansas Gov. Sam Brownback

Well, it was nice of Kansas Gov. Sam Brownback to give “serious consideration” to making public the names of the people applying for a judgeship on the state Court of Appeals. I won’t question his sincerity on that point, but his reasons for refusing to name the candidates are completely bogus.

Here’s Brownback in a statement: “In checking with those who have already expressed interest in applying, there is a strong preference for confidentiality which we will respect. It is clear that disclosing the names of potential nominees would hurt applicant pools for future selections and this is why the American Bar Association recommends this method of selection and why the Federal judicial selection process follows this same path.”

I can see where every lawyer who applies for the job on a whim might not be too eager to have his or her application made public. But people who are serious applicants for an appeals court judgeship ought to be ready for public scrutiny. It’s hard to see how being named as a finalist for a prestigious judgeship can hurt someone’s career. If anything, it would seem like a plus.

Now, about that American Bar Association recommendation. It’s true that

a report

written in 2000, “Report of the Commission on State Judicial Selection Standards,” says that “A judicial nominating commission should operate in an open, regularized fashion that also respects the candidates’ desire for confidentiality.”

Brownback is cherrypicking, however. As the aforementioned report states clearly, “The American Bar Association has supported and continues to support a merit-based appointive system for judicial selection sometimes referred to as ‘merit selection.’”

Merit selection, need we mention, is exactly what Brownback and the Kansas Legislature just kicked to the curb. That would be the process of enlisting a non-partisan commission to screen candidates and recommend a field of finalists to the governor — a method used for many years to select statewide judges in Kansas but scrapped in the last legislative session.

But here’s a thought. The ABA report states that “disclosure of selection criteria is essential.” So if Brownback is determined to operate in secrecy as far as the names of candidates, perhaps he’ll at least let the public know what qualifications he’s using to whittle down the field and present a nominee to the state Senate.

As the report says, disclosure of selection criteria “familiarizes the citizenry with the judicial selection procedures and diminishes the perception of personal and political bias in the selection of judges.”

Unfortunately, keeping political bias out of the selection process isn’t a priority of the governor and his legislative allies who pushed for the change. Lance Kinzer, chairman of the House Judiciary Committee, is


in the Kansas City Star saying that “the thing I love about this is, we now have somebody who’s politically accountable.”

So much for the ideal of an independent judiciary. In Kansas these days, the gold standard is a “politically accountable” judiciary.

Brownback allies are blustering that all the governor wants to do is follow the same process the federal government uses to select judges, and nobody expects the president to release the names of candidates.

Given Brownback’s professed disdain of Washington, that line of reasoning is comical. And given the crisis of federal court vacancies, it’s not as though the federal process is exactly working. But, yea, why not have the president release the names of finalists? Good idea.

At the end of the day, though, this isn’t about the Kansas courts working like the federal courts. This is about a long tradition of an independent state judiciary, chosen in the light of day, being trampled by a power-hungry governor.