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Supreme Court

Topeka Capital-Journal, The, May 8, 2005 by Chris Moon Capital-Journal

Fewer state bar members belly up for court vacancy

APPLICANTS

Kansas Court of Appeals Judge Thomas E. Malone; District Judges Richard D. Anderson and Eric S. Rosen, of Shawnee County, Robert W. Fairchild, of Douglas County, Steve A. Leben, of Johnson County, and Cordell D. Meeks Jr., of Wyandotte County; Jackie Williams, of Wichita, former U.S. attorney for Kansas; and lawyers Ricky E. Bailey, of Wichita, Arthur S. Chalmers, of Wichita, Martha J. Coffman, of Lawrence, Henry Reid Cox, of Shawnee, Kirk W. Lowry, of Topeka, and David R. Smith, of Fairway.

It is one of the top jobs in the land.

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It wields enormous power --- one of seven voices who have the final say on what comports with the Kansas Constitution.

At stake is a seat on the Kansas Supreme Court as a special commission meets later this month to interview applicants for a vacancy.

The commission will send three names to Gov. Kathleen Sebelius, who has the final choice.

But only 13 people have applied --- out of thousands of eligible judges, lawyers and law professors across Kansas.

It is the smallest field in years.

The previous 12 vacancies on the Supreme Court and the Kansas Court of Appeals yielded no fewer than 15 applicants. Most openings drew nearly twice that.

There is plenty of speculation but no consensus on why the lack of interest.

"It's disappointing, let's put it that way," said Michael Kaye, a Washburn University law professor. "The only thing wrong with 13 is it's an unlucky number. And the other thing wrong is it's a small group."

Court scrutiny

Perhaps small numbers are to be expected as the court's visibility becomes more pronounced and justices face an increasingly hostile Legislature.

"That may be in the background," said retired Supreme Court Justice Fred Six, who served on the court from 1989 to 2003.

He noted a proposal in the Legislature that would have forced Supreme Court nominees to undergo Senate confirmation, which he said would scare candidates away from the job.

Currently, a nine-member nominating commission screens applications for Supreme Court positions and forwards three nominees to the governor. The commission will study the 13 applicants on May 23 and 24.

The opening on the court was created by the March 30 death of Justice Robert Gernon, who died of complications from cancer.

Of the 13 who are seeking to replace him, one is a Kansas Court of Appeals judge, five are district judges and the remainder are lawyers.

Shawnee County District Court Judges Richard Anderson and Eric Rosen are among the applicants, as is Topeka lawyer Kirk Lowry.

The Senate confirmation proposal was the result of a Supreme Court ruling in December that struck down the state's death penalty.

The court said problems existed in how juries weighed evidence for and against death.

Just three years earlier, the court noted those same problems but left the law intact.

Some began calling the court "activist."

Justices also are being watched closely as they analyze the constitutionality of the state's school finance system. Some in the Legislature want to make sure the court doesn't overstep its bounds and order tax increases.

Tom Wright, a Topeka lawyer who served on the nominating commission from 1995 to 2003, said many lawyers simply don't want to enter that kind of hostile environment.

"It would discourage me if I had any interest in it," he said.

'Pent up ambition'

The Senate confirmation proposal didn't go anywhere but remained prominently displayed on the Senate calendar for much of the 2005 session.

Had it been enacted, the proposal certainly would have added "an extra burden on finding good people," Kaye said. "I think it would be discouraging, frankly."

But was the mere proposal of such a change enough to steer lawyers and judges away from seeking an appointment to the highest court in Kansas? Kaye didn't think so.

"The kinds of people who accept a seat on the Supreme Court --- I think they would not be intimidated by legislative posturing," he said.

There are other theories out there --- like candidates being reluctant to apply if they have shown past support to the GOP rather than Sebelius' Democratic Party. Candidates also could shy away from a matchup against a Court of Appeals judge like applicant Thomas E. Malone, of Wichita, a Sebelius appointee.

And then there is the large number of judicial openings during the past three years.

Senate Majority Leader Derek Schmidt, R-Independence, said that - -- and not his Senate confirmation measure --- has resulted in fewer applicants to the high court.

Four of the seven positions on the Kansas Supreme Court turned over in 2002 and 2003, most of those drawing dozens of applicants.

There also has been a rush on open positions on the Court of Appeals, which is selected in the same way as the high court.

Before that, it had been years since many of those positions were vacant.

"There was a lot of pent-up ambition by attorneys who wanted to be on the court," Schmidt said.

Supreme Court

Topeka Capital-Journal, The, May 8, 2005 by Chris Moon Capital-Journal

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