Last week, the House Judiciary heard a resolution (HCR 5005) (http://www.kslegislature.org/bills/2010/2009_5005.pdf) that would change how we select our Supreme Court justices and a bill that would change how we pick our Appellate Court Judges.

Believe it or not, Kansas is the only state in which the bar selects a majority of the nominating commission.

Many Kansas lawyers just don't think regular old citizens should meddle in these affairs. We have around 9,000 lawyers and 2.7 million citizens in Kansas. Are lawyers really 300 times smarter than non-lawyers?

Lawyers elect (and there are campaigns for these positions) four members and a chairman and the Governor selects four members of the Supreme Court nomination commission. The Commission takes applications when there is a judicial vacancy and selects three nominees and submits those to the Governor. If the Governor does not select one of these three, the Chief Justice then selects the new justice. (which is astonishing)

The proposal would require Senate confirmation of the justice selected by the Governor. The nominating commission would be reconfigured to have six members selected by legislative leadership, and three by the Governor. No more than three of the nine could be attorneys.

The Governor could reject the nominees presented to him or her and ask for three more.

The hearing went well. The other side really said nothing new and for the most part quit using arguments that they've used before that we've refuted, like the triple play and somehow this proposal is a nefarious way for people to pick the referees in a dispute when in fact that's what the current system is.

The “other side” in this argument is the Kansas Bar Association and the like; you know, the establishment lawyers that will fight tooth and nail before they give up their control.

And while the Kansas Bar Association's official review of the hearing stated that the Kansas "law schools" opposed the bills, in fact neither professor from Washburn or KU were representing their schools, just themselves.

And for the record we had professors from KU, UMKC and Samford supporting the bill, as well as the NAACP.

But the triple play did come up, amazingly. In 1958 Kansas elected Supreme Court justices and governors were given cart blanche to fill vacancies without any legislative or public involvement.

In 1956, Governor Fred Hall was defeated in the Republican Primary by Warren Shaw. Shaw was then defeated in the general election by George Docking. Chief Justice Bill Smith retired in December of that year, creating a vacancy. Hall then resigned and was succeeded by the very ill Lt. Governor, who then appointed Hall to the Supreme Court.

Most folks can see why there were cries of protest after this happened.

However, under any of the proposals, this could not and would not happen because of public and legislative oversight.

So anyone indicating that any change in the current system would somehow allow a new triple play is either dishonest, intentionally misleading or so brazen as to officially comment on a bill without having actually read the legislation.

I stated that while the triple play is irrelevant we are now looking at a double play because of the new Supreme Court justice Dan Biles. One of his clients was the State Board of Education. His former law partner and current Democratic Party Chair Larry Gates will replace Dan Biles.
 First play is to appoint the partner of Dem Party Chair
 Second play is for that law partner to assume a lucrative, taxpayer funded contract

Interestingly, enough former Supreme Court Justice Six, who also still retold the story of the triple play, said that for the first time since these proposals have been bouncing through the Legislature, a person has been personally attacked; that person being Dan Biles.

I made no statements as to his qualifications or skill as an attorney. I simply stated facts.

However, Justice Six goes on to then personally attack KU Law Profession Steve Ware who has authored a definitive paper on this subject. (http://www.fed-soc.org/doclib/20071126_KansasPaper.pdf) Six called Ware’s assertions “blue smoke and mirrors.” The irony of Six complaining about personal attacks was apparently lost on Justice Six.

The fact that Ware was personally attacked helps our cause because it reveals the pettiness of the other side. The former President of the Bar Association took a swipe at Ware since he's never argued before the Sup Ct and isn't licensed in Kansas, as if that matters as to the fact asserted in Ware’s paper. And apparently the former President of the Bar doesn’t know how to argue very well.

If you can’t argue the facts, lob personal attacks.

A KU law professor who opposed the bill and resolution defended Steve's research on this point, which made Six look a might silly. The KU Law Professor also described the proposal as “radical” but didn’t know how to answer when asked if he thought the founding father’s method of selecting Federal judges, which is still in existence, was radical.

I loved the representative from the Wichita Bar Association which used the argument and regular folks really aren’t’ equipped to select justices. At least he was openly and honestly elitist!

Their best argument, which they used, is "why fix something that isn't broken". They rhetorically ask that unless there are unqualified justices, bad decisions, then why change the system?

Chairman Lance Kinzer ask the group of opponents if there was dissatisfaction with the quality of justices and decision in the mid -1950s when merit selection was approved. Dick Hite responded he was unaware of any such issues at that time. Nice question Lance!

Notes from my testimony are below:
 I was admitted to the Kansas bar in Sept 1992

 The KBA does not speak for all lawyers

 Many lawyers agree with the proponents but fear of reprisal mutes their public support. A partner of a major law firm in Kansas fears a reduction in compensation if that person were to publicly advocate for this resolution?

 Why do lawyers want to desperately maintain such tight control over this process? Is it because they want to pick the referees of their future battles? Would sporting fans support coaches agreeing upon who shall umpire the World Series? Of course not.

 The notion that only lawyers are equipped with the necessary skills and knowledge to select justices is nonsense. Doctors do not select the board of healing arts, accountants do not select the members of the board of accountancy and university professors do not select the board of regents.

In fact there are non-doctors that serve on the Board of Healing Arts. Can you imagine what the bar would say if anyone proposed non-lawyers to serve on the Kansas Supreme Court?

 In fact, since this is one of the three legs or our democracy, more public accountability and openness is needed than those other public boards.

 We have around 9,000 lawyers and 2.7 million citizens in Kansas. Lawyers may or may not be smarter than citizens. However no one would argue they are 300 times smarter.

 The canard of the “Triple play” is meaningless as when that happened, the Governor had no check on a judicial appointment

 The members of the supreme court nominating commission are in fact highly political and have engaged in a lot of political giving

o Since 1992, 167 Democrats have rec’d $117,682 from members of the Commission and 37 Republicans have rec’d $23,250

http://www.fed-soc.org/publications/pubid.1254/pub_detail.asp

 However we may be staring at a “double play” –

o As you know, Dan Biles was recently appointed to the Kansas Supreme Court. One of his clients was the State Board of Education. It is my understanding that his former law partner and current Democratic Party Chair Larry Gates will replace Dan Biles.
 First play is to appoint the partner of Dem Party Chair
 Second play is for that law partner to assume a lucrative, taxpayer funded contract

 It is foolish to think politics will be removed from any such process as we have today.

We should substitute the politics of all citizens for the politics of a select group of lawyers.