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Kelly gets to Shape Court

President Donald Trump congratulates himself on his appointment/U.S. Senate confirmation of more than 100 federal judges, including two U.S. Supreme Court justices.

Now, it appears that Kansas Gov. Laura Kelly might be able to tout, maybe more discreetly, her success in packing the Kansas Supreme Court.

With the retirement in September of Justice Lee Johnson, and the just-announced retirement of Chief Justice Lawton Nuss in December, Kelly will get final say on two appointees to the court that often battles the Legislature with decisions that kill laws the Legislature passed. Look at abortion, look at school finance.

Now, if there’s something that the Legislature hates, it is any institution that has veto power over its action. That’s just the three-division state government at work—the executive, the legislative and the judicial branches. Legislators have always thought that they are the big dogs in the management of the state, and lawmakers growl at any other branch that won’t bow to their authority.

Lawmakers weren’t happy with the abortion decision, which essentially guarantees the right to abortion in Kansas. At least a majority of them, and the Republican leadership.

Oh, and lawmakers also want the court out of the business of deciding what is “adequate” in the way of state financing of public education. The court has loudly and frequently said it will determine just what is adequate to provide every Kansas schoolchild access to a good education from border to border.

So, having a Democrat governor with the power to appoint Supreme Court justices is a big deal. And now Kelly gets to appoint two justices to the seven-member court, and likely have a chance to make those appointees see state law the way she sees it.

The Legislature, or at least its overwhelming Republican majorities in each chamber, is not happy that a Democrat governor gets to interview and find a candidate for the court that is likely to be less conservative than the majority of legislators.

Already, the Senate has a proposed constitutional amendment warming up that would give the Senate the final say—to confirm or reject—a gubernatorial appointment to the high court. Sounds a little like conservative Republican state senators want to have the same power as federal senators, doesn’t it?

It takes a constitutional amendment, which means that if lawmakers OK the proposal, it will be November 2020 before it can be put before voters in the state to empower the Kansas Senate to have the final say on who gets to wear those nice black robes. 

By that time, Kelly’s appointees to the Supreme Court will have already redecorated their offices and gotten comfortable on the bench. Oh, Kelly’s appointments will have to stand for retention to their posts to earn their full six-year terms on the court, but that’s not a major issue…justices face conservative opposition, but haven’t been tossed off the court by voters in recent memory.

So, Kelly, and her moderate Republican and Democrat predecessors, will retain the majority on the court. Former Gov. Sam Brownback got just one Supreme Court appointment, his former chief counsel Caleb Stegall, arguably the most conservative justice in recent memory.

The nominations for Kelly to choose from for each job? We won’t know who they are until the five-lawyer, four-nonlawyer Supreme Court Nominating Commission winnows the jobseekers to just three for each chair to present to the governor for her selection. 

It looks like the court will retain its socially moderate position and not be afraid to take a swipe at the conservative GOP legislature for the next few years.

Wonder how that’s going to work out…