If ever there was a week when the predictability of car payments by members of the Kansas Supreme Court and the Kansas Court of Appeals was in jeopardy, it was last week.
Our Supreme Court was slapped 8-1 by the U.S. Supreme Court over its ruling that either overturned or at least delayed the death sentences meted out to the infamous Carr Brothers of 2000 Wichita massacre fame. The Kansas Court wanted more work done on the sentencing of the murderers, the U.S. Supreme Court overruled the state court.
And Friday, which was the 43rd anniversary of the U.S. Supreme Court’s Roe v. Wade decision that made the choice to have an abortion a constitutionally protected right, the local Court of Appeals couldn’t decide whether last session’s “dismemberment” abortion law is constitutional.
There were technical arguments about due process rights and such, but the decision, or non-decision tie, means that the prohibition of that specific abortion procedure remains on hold while the case is likely appealed to the Kansas Supreme Court.
Whether you are a fan of the death penalty or not, and whether you favor prohibiting a specific second-trimester abortion procedure or not, you’ll probably get the chance to read some campaign flyers and see some Internet postings about the competence or at least philosophical bent of both courts.
Count on opponents of the death penalty to be quiet, while death penalty/Wichita residents who were terrorized by that Carr Brothers case repeat the campaign they used in 2014 to target Supreme Court justices who didn’t allow the brothers to be put to death.
And, count on abortion-rights supporters to be quiet while opponents of abortion target Court of Appeals members who voted to maintain the Shawnee County District Court decision that prohibits enforcement of outlawing the abortion procedure passed by the Legislature and signed by the governor last spring.
The point of opponents of those decisions: That the state needs a new way to select those Appeals Court and Supreme Court jurists.
Supporters of the decisions say they want to keep by their view the impartial, by-the-constitution court to make important legal decisions.
Gov. Sam Brownback in his State of the State speech this month said that he’d like judges to stand for election, or at least that the governor gets to select Supreme Court justices with confirmation by the Kansas Senate, without them being vetted by a lawyer-heavy Supreme Court Nominating Commission.
Either would probably yield high court judges who think along the same philosophical lines as the governor who appoints them. Brownback has gotten his way, to a point, and now he gets to –and got to—appoint a member to the Kansas Court of Appeals without the nominating commission vetting, and the Senate confirmed his appointment. He liked it.
But judges don’t come and go with the governor, and while Brownback is living with high court justices appointed by governors more liberal than he is, you have to wonder what happens if a more philosophically moderate governor would like inheriting a far more conservative court than he/she would like?
It’s probably the broad background and understanding of the law that is important for a judge, not philosophical leanings or beliefs to shape opinions.
But governors are elected for their philosophical leanings and beliefs, and they would like to see those beliefs outlive their terms in office. That’s how they are.
So, do a couple decisions mean toss the judges you don’t agree with on specific issues? Practically, you can make pretty good arguments either way or move to a state where the history of court decisions is how you like them.
This is likely to be the year that we see the most heated campaigns for retention/non-retention of judges—oh, and maybe legislation to either directly elect or give the governor single-handed authority to name judges without those background checks the nominating commission performs.
At some point, voters patient enough to get to the bottom of the ballot where the retention votes are cast get to decide. We’ll see what their ruling is.
Syndicated by Hawver News Company LLC of Topeka; Martin Hawver is publisher of Hawver’s Capitol Report—to learn more about this nonpartisan statewide political news service, visit the website at www.hawvernews.com.
