Schmidt eager to alter selection of Kansas Supreme Court justices; Kelly prefers status quo

Kansas attorney general candidates split on direct election of justices

By: - October 6, 2022 2:13 pm
Derek Schmidt and Laura Kelly pose for photo after debate

Democratic Gov. Laura Kelly and Republican gubernatorial nominee Derek Schmidt debated judicial selection during their latest debate with Kelly preferring status quo for filling vacancies on the Kansas Supreme Court and Schmidt advocating for a federal model requiring Kansas Senate confirmation. (Tim Carpenter/Kansas Reflector)

OVERLAND PARK — Republican gubernatorial candidate Derek Schmidt wants the Kansas Constitution amended to require Kansas Senate confirmation votes on a governor’s nominees to the Kansas Supreme Court.

Schmidt, the state’s attorney general, said Kansas should mimic the federal model allowing the president to unilaterally nominate people to the U.S. Supreme Court subject to votes of the U.S. Senate.

He said during a debate Wednesday with Gov. Laura Kelly hosted by the Johnson County Bar Association that Kansas voters should be given the opportunity to modify the state Constitution as it related to membership of the state Supreme Court. He said for about 15 years he had “generally advocated something that looks more like the federal model.”

Kelly, a Democrat who has made three appointments to the seven-member state Supreme Court, said the merit-selection system drawing upon recommendations of a commission of attorneys and nonlawyers had served Kansas well since 1958. Kansans voted to adopt the current process in wake of a 1956 scandal in which Gov. Fred Hall relied on political alliances to land a seat on the state’s highest court.

“I think Kansans have long memories,” Kelly said. “We’ve seen games being played when that (Hall) process was in place.”

She said Kansas ought to continue to depend on the nine-member nominating commission’s assessment of applicants’ credentials and compilation of a list of three finalists for slots on the Supreme Court. Governors should still make the final pick, she said.

 

Election of justices

Neither Kelly nor Schmidt backed a proposal embraced by Kris Kobach, the GOP nominee for attorney general, for direct election of Supreme Court justices. Kobach previously endorsed shifting Kansas to the federal model with Senate confirmation of a governor’s nominees.

Kobach offered the direct-vote proposal in context of his disappointment with a Supreme Court decision saying the state Constitution afforded women a right to abortion as well as the subsequent failure of a proposed constitutional amendment in an August election that would have nullified the controversial abortion decision of the Supreme Court.

Kobach said during a campaign speech in Wichita the direct-election strategy would result in the slow, steady addition of anti-abortion justices to the Supreme Court.

Chris Mann, the Democratic nominee for attorney general, said introduction of the federal method invited the Senate to engage in an overtly political process of selecting Supreme Court justices. On Thursday, he said election of justices would have tragic consequences.

“This is a clear push by Kris Kobach towards his own political agenda. This office is not about one man’s political agenda,” Mann said. “Kansans have spoke and overwhelmingly voted to protect their right to private medical decisions. As attorney general, I will enforce the law and protect the constitutional rights of all Kansans.”

 

Court of Appeals

During the administration of Gov. Sam Brownback, the Legislature voted to abandon the merit-review process and make use of the federal approach to fill vacancies on the Kansas Court of Appeals.

Brownback made use of that law in 2014 when he put his administration’s general counsel, Caleb Stegall, on the Court of Appeals. Stegall also was appointed by Brownback to the Supreme Court.

Schmidt said reform of the selection process for the Court of Appeals proved useful when the Senate’s confirmation hearings in 2019 highlighted nominee Jeffrey Jack’s posts to Twitter denouncing President Donald Trump and other GOP lawmakers. It proved to be Jack’s downfall. Before named a district court judge, Jack served as a Republican in the Kansas House.

“It had the effect of screening out a candidate,” Schmidt said. “Ultimately everybody, including the governor, concluded (Jack) was unsuitable for the role.”

Subsequently, the Senate twice refused to confirm Court of Appeals nominee Carl Folsom, despite bipartisan support for him. Kelly responded to the Folsom decision by denouncing the focus of some senators on raw partisanship, rather than professional abilities.

“It breaks with longstanding tradition of keeping politics out of the courts. What you have in my nominee is one of the very best and one of the very brightest,” Kelly said.

Kelly voluntarily instituted the commission vetting process for vacancies on the Court of Appeals when she took office in 2019.

“I like having those folks screening,” Kelly said.

 

Nominating commission

Brownback, Schmidt, Kobach and other Republicans have complained about the nominating commission because five of nine seats were held by lawyers in good standing with the Kansas bar. During the Wednesday debate, Schmidt said it was unfair to 3 million Kansans that 9,000 members of the state bar possessed power to chose a majority of the commission’s members.

Members of the bar select an attorney to serve as commission chairman as well as four attorneys to represent each of the state’s congressional districts. Kansas governors name four nonlawyers to the commission, with one coming from each congressional district.

The commission gathers applications for judicial vacancies and must produce within 60 days a list of three finalists. Governors select from the group of finalists, but also could reject all three and the process would be repeated.

In Kansas, Supreme Court justices are subject to statewide retention votes. The initial vote occurs in the first election after a justice was sworn into the bench followed by individual retention votes on a six-year cycle.

In November, Kansas voters have an opportunity to directly decide whether to retain six of seven justices on the Supreme Court. The one escaping scrutiny in 2022 is Justice Eric Rosen, who was appointed in 2005 by Democratic Gov. Kathleen Sebelius.

The other Sebelius appointee on the Supreme Court, Justice Dan Biles, will be on the ballot. He has served as a justice since 2009.

The three Kelly selections for the Supreme Court will be considered by the state’s voters Nov. 8. Justices Melissa Taylor Standridge, Keynen K.J. Wall and Evelyn Wilson were appointed to the high court in 2020.

Also on the ballot: Chief Justice Marla Luckert, appointed by Republican Gov. Bill Graves in 2002, and Stegall, appointed by Brownback in 2014.

During the September debate between Kelly and Schmidt in Hutchinson, Kelly said she would vote to retain all the justices. Schmidt said he would vote against some, but didn’t identify members he would oppose.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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