Judicial selection system is a step backward
Published on -9/4/2013, 9:22 AM
For years, Kansas used a non-partisan, merit-based judicial selection process that served the state well. Fine lawyers and judges applied, the clerk of the Appellate Courts publicly released their names, and candidates were held in high regard by the members of the bar and public for putting their names forward for public service.
The merit selection process is transparent and shielded from politics by combining a merit-based interview with final appointment from a trio of candidates sent to the governor. Merit selection includes public interviews, public review of the candidates' qualifications, and weighing of the credentials of the successful judge. This transparent, fair and well-understood system produced fine Court of Appeals judges over the years, including my dad.
Unfortunately the Legislature changed the selection process for Court of Appeals judges last year and the consequences of that change are being borne out in Gov. Sam Brownback's secretive process to place a new judge on the appeals court.
Unlike merit selection where candidate names are public, under the governor's process the names are secret.
Unlike the merit selection process where the politics of the judge were a non-issue, the governor's system has interjected politics into the appointment process, creating headlines on whether or not the process will produce an independent judge or a political partisan.
Given this political rancor, unlike under merit selection in the past, public perception of the ultimately successful candidate will be influenced by the secrecy of the process. This secrecy is unhealthy for our democracy and for courts that rely on public trust in order to guarantee every Kansan's right to a fair day in court.
I know the candidate who has emerged, Caleb Stegall, a fellow law clerk on the 10th Circuit, a fellow resident of Douglas County, and I have known his family through working with his dad for several years. He has many fine qualities and deserves thoughtful consideration. I have sent the Kansas Senate a letter detailing my experience working on opposite sides of legal cases with him.
However, my experience with the candidate does not endorse or support the current secretive partisan selection process -- the claims that someone has Democratic or Republican support shows how far we have moved from the previous non-partisan merit selection system that worked so well for many years.
Kansas' new selection system is a step backwards. The secretive selection and political wrangling over the current candidate will weaken Kansans' confidence in their judges, create a less independent judiciary, and erode the separation of powers.
For the time being, Kansans are somewhat protected by the wise decisions made by our parents and grandparents who in 1958 included merit selection of Kansas Supreme Court Justices in the Kansas Constitution.
The governor's long game is to use this current appointment to support his efforts to change the Constitution and eliminate merit selection of Supreme Court justices. The political wrangling and headlines surrounding this selection demonstrate the deficiencies in the current Court of Appeals appointment process and how we are a less perfect state for it.
Kansans should prepare to man the barricades, to defend our Kansas Constitution, and to not allow partisan politics to change the way we select fair, independent, and qualified justices on the Kansas Supreme Court.
Steve Six was attorney general of Kansas from 2008-2011.