Gov.-elect Laura Kelly will have the opportunity to appoint a new judge to the Kansas Court of Appeals as soon as she comes into office. According to the Lawrence Journal-World, Kelly could choose her appointee with no input before she asks the Senate to confirm the choice. Instead, she plans to filter applications through a non-partisan nominating commission that will come up with a list of three candidates from which she can choose.
That is pretty much how it was done until 2013, when Gov. Sam Brownback pushed through a new system that allows the governor to make appointments directly, subject to Senate confirmation.
“In an effort to increase transparency, we will use a merit-based selection process similar to that used by the Kansas Supreme Court,” Kelly said in a statement Wednesday. “This is not required, but I believe the people of Kansas deserve to observe this process and know that we are choosing a highly-qualified person to serve in this important judicial position. I am committed to being open and transparent.”
The opening on the court is being created by the upcoming retirement of Judge Patrick D. McAnany, who reached the mandatory retirement age of 75 earlier this month.
In 2013, Brownback and other conservative lawmakers pushed through a change in law that did away with the merit-based selection process for Court of Appeals judges and allowed the governor to appoint whomever he or she chose, subject to Senate confirmation.
The first Court of Appeals judge appointed under that process, just months after the new law took effect, was Caleb Stegall, who was Brownback’s chief counsel at the time. He was later elevated to a seat on the Kansas Supreme Court — the only justice appointed by Brownback. Last year Kansas voters approved retaining him, so Stegall appears to have been a worthy appointee.
However, there were good reasons for merit selection. As the Sierra Club noted in 2013, “The current (merit-based) process was created after back-room deal making and corruption in the executive branch undermined the will of Kansans in the 1950s. This process for selecting judges has worked well for over half a century.”
While critics of the previous system argued that the nominating commission was dominated by lawyers who were all selected by other lawyers, mostly they were critical of many of the decisions handed down by “activist judges” in Kansas appellate courts. They also wanted to push through a similar change for selecting Kansas Supreme Court justices. But that effort was unsuccessful because it would have required a constitutional amendment.
The former process – the one Kelly plans to follow – helped keep the judicial branch of government independent by ensuring that judges were appointed on the basis of merit rather than political loyalties.
Future decisions in Kansas courts won’t be made by “Kelly Judges” or “Brownback Judges.” The Kansas Legislature needs to understand that and bring back merit-based appointments. Until then, Gov.-elect Kelly deserves credit for doing the right thing.