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Judicial changes

Published on -1/20/2013, 1:05 PM

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With the Kansas Legislature sworn into session, the traditional 90-day frenzy is under way. Actually, frenzy tends to describe merely the last week or two of the term.

But the Capitol Building is a different structure in 2013 -- and it has nothing to do with renovations. It is all about the composition of the two deliberative bodies known as the Senate and the House of Representatives. The supermajority of conservatives in both houses realize that without opposition, they'll likely be able to get a lot passed and signed into law.

As such, the frenzy has begun.

The Senate Judiciary Committee held two days of hearings last week concerning Gov. Sam Brownback's desire to change the state Constitution and the appointing of judges. Currently, a judicial nominating panel uses a merit selection process to produce three finalists for the governor to choose from. The Kansas Bar Association appoints five of the members and the governor appoints four.

Brownback and a number of legislators believe the system to be undemocratic. They would prefer the governor simply appoint judges, subject to confirmation by the Senate. Changing the Constitution to accommodate the move would require two-thirds approval by both houses and then a simple majority in a statewide vote.

Arguments were heard for and against changing the merit selection process. A number of law professors testified that voters are shut out of the appointment process. A number of lawyers, including the KBA, believe the current procedures keep politics out of the process. And a recent poll conducted by the Justice at Stake group indicated 61 percent of Kansas voters oppose rewriting the Constitution to accommodate the governor's wishes.

As it turns out, an action taken by the KBA last month likely rendered the hearings moot. By resolution, the board of governors for the Kansas Bar Association voted to continue supporting the merit selection process but also change the composition of the judicial nominating panel. Rather than appoint five members, the KBA would have four. The group advocated giving the governor five -- and an additional six to legislative leaders.

The result will be political appointees having more than two-thirds majority of the panel, far outweighing potential concerns of attorneys. A merit panel might well be in place, but politics will have the power to hold sway.

What was the KBA thinking? The group undermined its own principled position.

If the Legislature seeks to accept KBA's offer, Kansans will vote on a constitutional amendment anyway. After all, the composition of the nominating committee is outlined in the document.

We anticipated fully the rubber-stamping of Gov. Brownback's agenda by the Legislature. That a special interest group, particularly one empowered by the state constitution, would roll over as well -- before the fight even began -- does not bode well for the future. Kansas voters could reject KBA's self-emasculation attempt and force it to take responsibility.

Look for legislators to craft the constitutional amendment question in a manner that the fallback position won't allow such a thing.

Editorial by Patrick Lowry

plowry@dailynews.net

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