WSJ on Faux Outrage in Kansas

The Wall Street Journal lays out the battle lines in Kansas, where leftist groups are trying to drum up outrage over a routine judicial appointment by Governor Brownback:

The groups are in battle stance because they fear Kansas’s partial abandonment in March of the so-called Missouri Plan for selecting judges could have a domino effect in other states. The plan, which uses a commission comprised mostly of lawyers to handpick judicial nominees, has been falling out of favor in many states that have seen the supposedly non-partisan process push their courts to the left.

Opponents are also hoping the fight will have a chilling effect on efforts to get rid of the Missouri Plan for judges on the state Supreme Court next year. Changing the selection method there will require a two-thirds majority in both chambers to get an amendment on the ballot. And the Justice at Stake contingent is hoping to make lawmakers think twice.

The new Kansas selection process couldn’t be less radical, mirroring the federal process in which the nominee is chosen by the president and confirmed by the Senate. But that hasn’t stopped Kansas Democrats from railing against the “secretive” process by which Mr. Brownback narrows his list and selects a nominee.

The state Legislature will hold a special session on Sept. 3, and state Senate Minority Leader Anthony Hensley, a Democrat, says it’s an “orchestrated decoy” to get Mr. Brownback’s “secret appointee to the Court of Appeals as fast and with as little public scrutiny as possible.” The dust-up over the special session is mostly for show, since the eventual nominee would have the same confirmation odds in a special session.

If there is anything orchestrated about this tempest in a teapot, it is groups trying to create controversy around using the same process for judicial appointments that the federal courts have for over 200 years. Even the ABA — which has been given a privileged role by this president to vet judicial nominees before their names are released to the public and has opined about the importance of confidentiality to ensuring high-quality judicial candidates — suddenly is all in a tizzy that the Kansas governor isn’t publishing his entire shortlist on WikiLeaks.

This won’t be the last of their faux outrage. When the Kansas legislature meets in September, expect insinuations that a special session somehow is underhandedly giving the governor’s nominees an advantage (it doesn’t). 

And when Governor Brownback’s nominee is announced, be prepared to hear the governor’s critics warn that the nominee’s Kansas is

a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

The bottom line is that those critics, from Topeka to Washington, care very little about judicial independence or the proper role of courts in society. They are simply terrified by the fact that Kansas is part of a national trend away from their beloved method of judicial selection, the bar-dominated Missouri Plan. And, as the Journal aptly noted, hell hath no fury like a lawyer scorned.


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

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