With less than two weeks to go, Kansas governor Sam Brownback is still in a close race for reelection. He should ultimately prevail, but his leadership on tax reform, and in particular his plan to phase out the state’s income taxes, have caused the Left to come unhinged. And his critics seem to think that if they can defeat Brownback and reverse the reforms achieved in Kansas, they can keep other governors and conservative legislators from getting too excited about tax reform in their states. Not surprisingly, Grover Norquist has called this “the most important race in America.”
But here is another reason conservatives should be very concerned about Governor Brownback’s future: No governor in any state has done more to fight for a judiciary that puts the rule of law ahead of political preferences.
Kansas is one of about a dozen “Missouri Plan” states, which means that the state’s governor must select supreme-court appointments from a list of nominees produced by a bar-dominated commission. So if the left-leaning lawyers who run the state’s legal guild want to undermine or block Governor Brownback’s agenda, they have a judicial branch that is ready, willing, and able. And that is precisely the sort of political wetwork that the Kansas supreme court has engaged in over the last several decades.
Governor Brownback understood the severity of the problem and went about fixing it just after taking office. In 2011 he urged the legislature to work with him to reform the state’s judicial selection process. In 2012, after reform legislation was defeated by moderate Republicans in the state senate, he campaigned against those incumbents and helped elect a new crop of conservatives who would work with him on this and other priorities.
In 2013 he intensified his calls for reform by making it a top priority in his state-of-the-state address, saying he would be open to contested elections for all judges, or a method of appointment like the one set forth in the U.S. Constitution. This time he faced a receptive audience among legislators, and when they sent a bill to his desk to abolish the Missouri Plan at the court-of-appeals level, he signed the bill and continued to press for a constitutional amendment to reform the process at the state-supreme-court level.
In early 2014 when he faced his first court-of-appeals vacancy under the new selection system, he appointed Caleb Stegall, a star in the Kansas legal community who had distinguished himself as a lawyer and as a warrior for conservative causes. Most recently, when faced with a vacancy on the Kansas supreme court, he pulled off a miracle by somehow getting the state’s nominating commission to put Stegall on the list of nominees for that vacancy. He appointed Stegall to the court, giving Kansas its first conservative supreme-court justice in a generation.
And now, in the midst of what has been a surprisingly challenging race for reelection, he has once again made judges a priority. (See this TV ad.) As the Wall Street Journal summarized yesterday:
In a Tuesday debate at the Kansas Association of Broadcasters convention, Mr. Brownback bore down on his attack against the state’s left-leaning Supreme Court. Mr. Davis “wants to continue to appoint liberal judges to that court. I want to appoint judges who will interpret the law, not rewrite it as they choose to see it,” he said.
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Conservative Republicans and Mr. Brownback would like to reform the selection of state high court judges as well, though this would necessitate a constitutional amendment which must be approved by two-thirds of both legislative chambers and a majority of voters. While not implausible—Republicans hold 80% of the Senate and 75% of the House—such a reform would be a heavy political lift.
By campaigning against the liberal judiciary, the governor is laying the groundwork for a future referendum and ratcheting up the stakes of the election.
The rule of law is essential for the promotion of a vibrant economy and a culture that encourages human flourishing. Governor Brownback has demonstrated that he understands that, and that he understands that his state’s broken judicial-selection system undermines the rule of law. I expect him to win, but whether he wins or loses, there is no doubt in my mind that Kansas will be a better state to live, work, and raise a family because of his leadership.