Brownback Gives [No Ground]

[UPDATE 7/11/13]:  Governor Brownback’s office has released a statement by the governor clarifying that he will not release the names of applicants for a vacancy on the Kansas Court of Appeals, reasoning that such disclosure would discourage the best possible judges from applying.  Supporters of the rule of law and high quality courts, in Kansas and elsewhere, should applaud Governor Brownback for making a sound public policy decision in the face of overwhelming criticism from the press and far left special interest groups.  This post has been updated accordingly.  

As I reported last week, a coalition of partisan advocacy groups, led by Soros-funded Justice at Stake, had been throwing a temper tantrum over the fact that Kansas governor Sam Brownback would not disclose the names of applicants for a judicial vacancy. Sadly, Governor Brownback has apparently caved under the pressure and will release the names of the applicants.  

No president in American history has done what these groups urged Governor Brownback to do, and, as I have already noted, I don’t see any of them calling on President Obama to disclose the name of judicial applicants. With good reason — such a campaign would be scoffed at by judicial-selection experts on the right and the left. 

As Rutgers professor Alan Tarr, a leading scholar on state judicial selection and state constitutions, explained in a statement, the front-end confidentiality of the federal method actually improves the quality of the judicial applicant pool:

I am not surprised that Governor Brownback has declined to disclose the names of all those who expressed an interest in the judicial vacancy.  In New Jersey, which has the same system of governors appointing with senate approval, neither Republican nor Democratic governors have ever released the names of applicants for judicial slots, and with good reason–many qualified persons won’t apply unless their names are kept secret, because they don’t want to jeopardize their current positions.

Has applicant confidentiality destroyed the New Jersey Supreme Court? Apparently not according to the New York Times, which has lauded (incorrectly, in my view) the court as “one of the most respected state appeals courts in the country.” 

Such arguments once mattered to legal organizations who claim to care about encouraging applicant pools of the highest quality. As I explained in my last post, that is why the American Bar Association’s policy favors confidentiality. 

Even liberal supporters of the commission-based Missouri Plan defend applicant confidentiality in that process. According to the American Bar Association’s “Report of the Commission on State Judicial Selection Standards”:

In an effort to reduce the fear candidates may have of exposing their private histories, commissioners should keep candidate information confidential.  In some cases, commissions may even decide to keep the names of applicants anonymous.

The American Judicature Society, an ally of Justice at Stake’s, has also spoken in favor of nominee confidentiality. In their Handbook for Judicial Nominating Commissioners, they explain that:

Balancing the public’s right to be kept informed with the applicant’s right to privacy is difficult.  Wherever possible, the applicant should be protected from (i) public scrutiny with respect to his or her private life and (ii) public embarrassment that could result from the failure to receive a nomination.  Most judicial nominating procedures require limited public disclosure, such as publicizing the names of the nominees submitted to the appointing authority. . . . A majority of judicial nominating committees require the applicant’s application and file to remain confidential and outside the purview of the public.

In the AJS publication ”Inside Merit Selection,” they further draw the link between judicial quality and confidentiality:

While accountability can help improve the process by ensuring fair and even-handed consideration of applicants, keeping information confidential can ensure a high-quality pool of candidates by guaranteeing that an applicant will not suffer professional ramifications such as loss of business to their law practice or a perception that they are less committed to their current position by virtue of their interest in obtaining a judgeship. 

Governor Brownback’s critics would have you believe none of that was ever written, and that there is no reasonable case for confidentiality. Why? Because they are partisan activists who have little interest in actually advancing the rule of law.  

Justice at Stake is funded by left-wing Hungarian billionaire George Soros, and the organization’s executive director is a liberal activist who has worked for the Clinton-Gore campaign, Attorney General Janet Reno, and the Progressive Policy Institute. The Justice at Stake staffer quoted extensively in the Topeka Capital Journal’s stories is also a liberal activist, having worked for the National Center for Lesbian Rights, the American Constitution Society, the Human Rights Campaign, and the board of the Transgender Law and Policy Institute.  

Surprised that they are driving policy in Kansas? Me too.  

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

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