- Associated Press - Saturday, February 6, 2016

TOPEKA, Kan. (AP) - A legislative dispute over how Kansas Supreme Court justices are selected is a political struggle over whether Republican Gov. Sam Brownback and his supporters can make their conservative fiscal and social policies stick well into the future.

Brownback and his allies contend that their goal in seeking change is to make the selection process more democratic. His critics say they’re fighting to preserve the court system’s independence.

But comments from both sides showed what really was at issue, as the House rejected a proposal to give the governor and legislators more control over Supreme Court appointments. Brownback’s allies believe a court that’s more in touch with voters will be more conservative and less likely to nullify their work. His opponents celebrated the vote as a necessary check on Brownback’s ambitions.

Rulings from the court overturning death sentences for convicted murderers and the potential for a major ruling in favor of abortion rights created openings for conservatives to reopen the judicial selection debate this year. Meanwhile, moderates and liberals are waiting to see whether the justices order the state to boost its spending on public schools in a pending case.

“They appreciate that court because they (the justices) do the things they (legislators) can’t do with a minority number of votes,” said House Majority Leader Jene Vickrey, a Louisburg Republican.

Brownback’s public calls for change have come to naught so far because it would require amending the state constitution. A proposal must pass both chambers by two-thirds majorities and be approved by a simple majority of voters in a statewide election.

Under the current selection system, a nine-member commission nominates three finalists for each Supreme Court vacancy. The governor must pick one, or the choice goes to the Supreme Court chief justice. Legislators have no role, though every six years, voters decide in a statewide yes-or-no ballot question whether to keep a justice on the bench.

The proposal rejected by the House would have allowed the governor to appoint justices, subject to state Senate confirmation. There would have been no nominating commission, giving the governor a freer hand. While the appointee would have faced a Senate vote, GOP conservatives have a supermajority there.

The House vote on the proposal was 68-54 in favor, leaving supporters 16 votes short of a two-thirds majority. House Minority Leader Tom Burroughs, a Kansas City Democrat, declared that lawmakers rejected the “governor’s power grab.”

Backers of the current system contend it has minimized partisan politics in selecting justices. Voters adopted it as a constitutional amendment in 1958, dropping partisan elections.

“We’ve had it for 50 years,” said Rep. Barbara Bollier, a moderate Mission Hills Republican. “There have been no problems.”

Critics of the current system focus on the nominating commission’s power to screen applicants for the governor. Five of its nine members, including its chairwoman, are attorneys elected by other attorneys. About 2,500 participated in the special elections in 2014.

“It’s very hard to justify the current system, the way it’s biased in favor of lawyer control,” said Senate Judiciary Committee Chairman Jeff King, a conservative Independence Republican. “It’s easier for opponents (of change) to demonize the governor.”

GOP conservatives also contend that there have been problems with individual court rulings.

The high court in 2014 reversed the death sentences that brothers Jonathan and Reginald Carr received for four killings in Wichita in 2000 after a night of mayhem in which the victims were sexually abused and robbed. The U.S. Supreme Court recently reversed the decisions.

The Kansas Supreme Court also is expected to review a case in which a lower court blocked a ban enacted last year on a common second-trimester abortion procedure.

None of the court’s seven justices is due to retire before Brownback leaves office in January 2019, but five are on the ballot in November. Four were appointed by Brownback’s predecessors, and the influential anti-abortion group Kansans for Life is urging voters to remove them. The Carrs’ cases are likely to be an issue as well.

It’s plausible that voters could create vacancies on the state’s highest court. If legislators approve a change this spring in the process for naming new justices, the same voters could enact it in November. Brownback and his legislative allies could gain greater power just in time.

“They want to take over the court,” said Rep. Jim Ward, a Wichita Democrat. “Everybody knows what’s going on.”

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Political Writer John Hanna has covered state government and politics since 1986. Follow him on Twitter at https://twitter.com/apjdhanna

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