Bench Memos

Silly Attack on Judicial Selection in Kansas

In January Governor Brownback delivered his annual State of the State Address and called for an end to the state’s current method for selecting judges, the Missouri Plan. The state legislature took him up on the invitation and adopted a federal style of selection for court of appeals appointments. It was a great victory for those of us who are tired of watching the Missouri Plan facilitate capture of state supreme courts across the country.  

Now that the new process is kicking into gear, Missouri Plan advocates are throwing a conniption fit over the fact that Governor Brownback won’t publicly disclose the names of applicants for judicial vacancies.

Of all of the policy objections once could raise concerning the federal style of selection, this one strikes me as probably the silliest. And it seems especially silly coming from activists who prefer a method of selection (the Missouri Plan) that allows a handful of politically unaccountable lawyers to pick judges in secret.  

The new process being used for Kansas Court of Appeals appointments mirrors the advice-and-consent process set forth in the U.S. Constitution. I don’t recall any major advocacy organizations, in Kansas or elsewhere, calling on President Obama to make the names of his judicial applicants public. Similarly, I must be missing the Sturm und Drang resulting from the ABA’s failure to release their vetting materials for each potential nominee. To the contrary, it seems to me that virtually everyone in the legal community — on the right and the left — agrees that the confidentiality associated with the front end of the federal process is an asset rather than a liability.  

According to the American Bar Association’s Standing Committee on the Federal Judiciary:

The preservation of confidentiality is particularly critical with respect to the identity of individuals whom the President is considering nominating and whose names are provided to the Committee by the White House or the Department of Justice. . . . The Committee adheres to principles of nondisclosure and strict confidentiality because the nomination process is a presidential function, and the President should be able to obtain a confidential assessment of the professional qualifications of prospective nominees. Moreover, prospective nominees not ultimately nominated should be spared of any embarrassment that might result from disclosure of the evaluation.

Apparently none of that occurred to these Missouri Plan advocates, who seem perfectly at ease with the prospect that applicants might be embarrassed, lose clients, or face adverse employment decisions as a result of pursuing government service.  

The Soros-backed Justice at Stake and a partner organization named the “Institute for the Advancement of the American Legal System” are doing their best to promote all of the inane talking points being produced by Brownback’s critics, a task that probably has them breathless given the pace of the inanity.  

My favorite entry is by Liz Seaton, who, without a bit of irony, asserts that “if the governor doesn’t invoke transparency until he has picked a nominee, it would mean a huge step backward for fair courts in Kansas.” Got that? Huge. Second favorite by Malia Reddick: ”By supreme court rule, the nominating commission had made public the names of judicial applicants to encourage citizen scrutiny and input.”

Right.  Who can forget all that citizen scrutiny and input . . . which went into a circular file managed by whichever local personal-injury attorney ran things at the time. One could easily rewrite the sentence to say “King George made public his policy of imposing taxes upon his colonial subjects without their consent, to encourage scrutiny and input.” 

Jokes aside, the refusal to establish an independent judiciary was one of the complaints leveled against King George in the Declaration of Independence. And when seeking to establish such a branch in the new Republic, Alexander Hamilton argued in Federalist 76 that:

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.

And through their role in the confirmation process — a genuinely transparent process — Kansas legislators will be able to provide what Hamilton described as “an excellent check upon a spirit of favoritism” in the chief executive, tending “greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

Governor Brownback has the distinction of having served in the U.S. Senate, participating directly in that process Hamilton described, and at one time playing a key role in scuttling one of President Bush’s Supreme Court nominees. He knows a thing or two about accountability and transparency in judicial selection, and I wouldn’t expect him to succumb to this half-witted intimidation campaign. 

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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