Posts Tagged ‘judicial reform’

judicial activismThe Kansas Supreme Court has deferred examining whether the Kansas constitution contains a right to abortion, as “discovered” in June by a lone district court judge. The state Attorney General’s appeal of the “discovery” thus stays in the state Court of Appeals.

Outside of the state political intrigue surrounding this development, it is symbolic of a national strategy: pro-abortion legal interests are forcing state courts to “discover” abortion rights in state constitutions. This is their backup plan–because absolute support for abortion over the past decades has eroded at the U.S. Supreme Court.

The horrific Roe ruling in 1973 that legalized the destruction of over 56 million innocent lives did not shut down dissent as abortion interests had hoped. Instead, not only has the population become more pro-life, states have gained more leverage in restricting abortion and have accrued legal footholds to overturn Roe.

In response, abortion strategy has been to get “mini” Roe rulings in the states by filing legal challenges to state pro-life laws that include claims that there is a state constitutional basis for abortion. It worked in Tennessee, where an overreach of their state supreme court declared a state constitutional basis for abortion did exist, blocking pro-life protections in that state for 15 years. It took tremendous efforts to eventually mount the successful ballot initiative that overruled that overreach.

In April, Kansas passed the Unborn Child Protection from Dismemberment Abortion Act, to ban the barbaric method of ripping apart living unborn children until they bleed to death. The Act poses a huge threat to abortion interests, both financially and legally.stop dismembering poster

Enter the national Center for Reproductive Rights (CRR), filing suit to preserve dismemberment abortions on behalf of Kansas City suburban abortionists Herb Hodes and Traci Nauser. The legal brief included claims about an as-yet-unacknowledged state right to abortion, as had other suits that Hodes & Nauser / CRR had filed against Kansas pro-life laws.

The lawsuit went to Shawnee County district Judge Larry Hendricks, who issued a temporary injunction on the Act June 25. Hendricks so thoroughly agreed with abortionists’ legal claims that he allowed the CRR to write his injunction ruling—a very rare occurrence.

That is how citizens of the very pro-life state of Kansas were informed that –unbeknownst to them, much less the authors of the state constitution– a legal right to abortion, separate and distinct from the one issued in Roe, has existed all along!

The office of Attorney General Derek Schmidt immediately filed to appeal Hendricks’ injunction with its bold pronouncements; the office has continually asserted that

the notion that our 1859 state constitution protects abortion “is a fantasy.”

Soon after, Schmidt’s office filed a motion to move the appeal straight to the state Supreme Court, due to the gravity of the effects on Kansas law that would follow under this constitutional “discovery.”

On Aug 30, without explanation, and by a 4-3 vote, the Kansas State Supreme Court rejected the A.G.’s request to intervene now. The Supreme Court should have complied with the request because it would inevitably be asked to rule on it from the loser of the appellate case. Thankfully, the appellate court has promised to act on an expedited timeline.

Ks Supreme Court

Kansas Supreme Court

Large political considerations are in play.

There has been growing unrest with anti-life justices on the state supreme court chosen under the least representative nomination method in the nation.

Kansans for Life has repeatedly called out that Court for their preferential treatment of abortion clinics in statewide legal cases going back to 1998.

In theory, citizens would show their opposition to judicial activism at the ballot box, where the judges of the supreme and appellate courts stand for “retention” every six years. Unfortunately, there has been a reluctance to vote them out and they are reliably retained by comfortable margins. Even the publicized death of a judge (whose name could not be removed from the printed ballot in time) did not keep voters from supporting his retention!

Kansans for Life has made court reform a top pro-life priority and pushed hard to improve the nomination process of the state’s highest courts. We have achieved a new selection method for the appellate court (by statute) but not yet for the state supreme court (which requires a legislative super majority and statewide ballot).

We educated the public about anti-life judges before the 2010 and 2014 elections; although none were defeated, a significant dent was made in their retention margins.

Five of the seven supreme court justices and six of the fourteen appellate judges in Kansas are up for retention in 2016. Those who are so extreme as to ratify the invention of a state right to abortion in our pre-Civil War Constitution –at a time when abortion was illegal in every state—may very well be a little nervous about losing their seats on the bench.

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Senate VP Jeff King

Sen. Jeff King

28 of 40 Kansas Senators voted Wednesday to approve two measures allowing reform of the judicial nomination system. It would affect all the state’s highest justices and judges–those on the Kansas Supreme Court and Court of Appeals.

The current system, “does not have the legitimacy for the voters of the state of Kansas that it needs,” according to the bill sponsor, new Senate Vice-president, Jeff King (R-Independence).

The first Senate bill, SCR 1601, allows the public to vote to change the Kansas Constitution method of selecting the state Supreme Court and needs 2/3 approval of both chambers to be put on the 2014 ballot. SCR 1601 would put the selection of the appellate court into the state Constitution.

SCR 1601 mirrors the House measure, HCR 5002, applying to selection for both courts, and which passed favorably out of the House Judiciary committee last week, following extensive testimony over three days.

The Senate also passed a second, companion bill SB 8, creating a seven-member commission that would review the caliber of the Governor’s nominee for use in Senate confirmation.

Kansans for Life is scoring these measures as pro-life; we have long supported judicial selection reform measures that improve transparency and public involvement.  In 2006, we scored as pro-life a vote supporting a more modest reform measure allowing Senate confirmation of state Supreme Court nominees. During Senate confirmation, the public can learn of the leanings and past rulings of the nominees, similar to the vetting that happens at the federal level for nominees to the U.S. Supreme Court.

Sen. majority leader Terry Bruce

Sen. Terry Bruce

The current method of filling each vacancy for the state’s Supreme and appellate courts is considered secretive and non-democratic. In private deliberations, the judicial nominating committee, composed of five lawyers and four non-lawyers, selects three names from which the governor must choose one. The reform would give the governor free reign for picking a nominee, which the Senate –in open session– would have to vote whether to confirm or not. In the latter case, the process starts anew.

The reform also eliminates the current nominating committee. New Senate Majority Leader, Terry Bruce (R-Hutchinson), described that committee as “distorted by special interest lawyers”.  Both Senators King and Bruce, who urged the reform measures, are themselves attorneys by profession; but many attorneys, including the Kansas Bar association, have long fought to keep the nominating committee.

More discussion of the Kansas courts’ pro-abortion bias and testimony about the nominating committee political bias will appear in a follow-up post.

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