The James Madison Law Center filed suit Thursday in federal court on behalf of Kansans who oppose the current system of nominating justices for the Kansas Supreme Court as unconstitutionally denying ordinary voters an equal voice.
Kansas attorneys have the most unrestricted power of any state in the union to hand-select state Supreme Court justices. The retirement of Chief Justice Robert Davis preceding his Aug. 4 death,
leaves lame duck Democrat Gov. Mark Parkinson an opportunity to add another liberal member to this Sebelius-majority Court, which has stalled prosecution against Planned Parenthood since May 2009.
Files obtained after the Court ruled in the 2005 abortion files case, led to the filing of 107 criminal charges against the Planned Parenthood in Overland Park. In that ruling, Justice Davis–along with then-Chief Justice Kay McFarland– complained about Justice Carol Beier’s prejudicial rant against AG Phill Kline.
Thursday’s lawsuit seeks a federal restraining order to prevent a nominating commission from filling the Davis vacancy, and is asking a federal judge to prohibit the nominating committee from being involved in the process. UPDATE, Fri. Sept.10: Judge Monti Belot heard arguments and promised a ruling next week.
The nine-member nominating commission has its chair and 4 additional attorneys chosen by Kansas attorneys (correction: not the Kansas Bar Ass’n) which the legislature does not confirm in any way. Their 3 selected Court nominees cannot be rejected by the governor or rejected/confirmed by the legislature.
Thus, the legal community is selecting judges, with only limited input from the other four commission members selected by the governor. Based on prior court rulings, the suit argues, “Because the members of the commission exercise a traditional government function that has an effect on all citizens of Kansas, the election of all members must be open to all citizens of Kansas who are qualified to vote.”
In other words, only in a very few narrowly tailored situations has it been ruled legal for entities running our government to be chosen without the direct or representational involvement of voters. And choosing our top legal arbiters– the justices interpreting law and ruling on the action of state officials –is NOT one of those exempted situations. Thus, the reason for the lawsuit.
The KansasWatchdog has covered both how the Federalist Society has been agitating against this nominating process, and how politics influences the Court.