Daily Archives: Jan. 16, 2013

Bar Association offers to give up lawyers’ majority in choosing Supreme and appeals court judges

Kris Kobach testifies at hearing on judicial selection.

A day after Gov. Sam Brownback called on the Legislature to change the way Kansas selects Supreme Court and appellate judges, the president of the state’s association of lawyers offered to give up its majority on the state Judicial Nominating Commission.

The president of the Kansas Bar Association, Lee Smithyman of Overland Park, told legislators if they think lawyers have too much influence on picking judges, they should keep the system and reduce the number of lawyers in it.

“The Kansas Bar Association is very comfortable with a minority of attorneys on the (nominating) panel,” Smithyman said.

Both the House and Senate judiciary committees held hearings Wednesday on whether to change the selection process to direct election, where voters choose the top judges; or the “federal model” in which the governor appoints judges with the consent of the Senate.

In the current system, a nine-member commission — five lawyers elected by the Bar and four non-lawyers appointed by the governor — reviews applications and nominates three candidates. The governor must make a final selection from among the three nominees.

He proposed what the Bar Association calls the four-five-six plan, in which the Bar would select four members, the governor five, including a nonvoting chairman, and House and Senate leaders would choose six members.

“We lawyers think the present system is excellent,” he added. “We think we need to retain all the virtues that the merit system has given us.”

Brownback criticized the system in his State of the State speech Tuesday night, saying it “fails the democratic test,” and asked lawmakers to change it. He said he’d be fine with either direct election or the federal model.

Smithyman was the only proponent of the current system to testify to the House Judiciary Committee on a day set aside mostly for its opponents, including Secretary of State Kris Kobach. Kobach said he was testifying not in his official capacity, but as a lawyer and former law professor.

He said not only is the current system undemocratic, it doesn’t even pick the best judges.

“I would submit to you that if you look at the quality of the Kansas judiciary, Court of Appeals and Supreme Court, and compare it to similarly sized states like Maine, that has the federal model, just look at the resumes, look at the qualifications, I would say most people would say Kansas probably does not do as well,” Kobach said.

Kobach said the same holds true of Kansas’ federal judges, who were drawn from the same talent pool as the state judges but underwent a “crucible of scrutiny” under the federal model before receiving a presidential appointment. “I think most people would agree that the federal list (of judges) is more impressive,” Kobach said.

University of Kansas law professor Stephen Ware told the committee that he sees three major flaws in the current system.

“The current system is undemocratic, the second problem is it is extreme and the third problem is it’s secretive,” Ware said. “You don’t need to trade off judicial quality against democratic legitimacy.”

Sedgwick County District Judge Eric Yost acknowledged to the lawmakers that elections are “a lot of work, a lot of time, a lot of money.”

However, he added “The thing is democracy is a messy thing… but these appellate judges have enormous power over all of us.”

Judge Anthony Powell, recently elevated from the Sedgwick County district bench to the Court of Appeals, said it was “somewhat of an uncomfortable position” to testify in favor of changing the selection process, because his new colleagues generally favor the current system.

But, he said the question is simple: “Do free people have the right of self-government or not.”

Tax crusader Norquist blasts immigration crackdowns; Kansas’ Kobach says he should stick to taxes

TOPEKA — Grover Norquist, a hero among anti-tax Republicans, told state legislators Wednesday that it’s OK to be conservative and be against cracking down on illegal immigrants.


Norquist, president of Americans for Tax Reform, argued that immigration is good for the country and took a swipe at Arizona’s controversial anti-immigrant law, which requires local law enforcement officers to check the immigration status of people they suspect are in the United States illegally.

“They (Arizona) said we’re not for asking everybody for their papers like some World War II movie, we’re interested in only asking for papers of people who violated the law,” Norquist said. “So they passed a law making it illegal to stand on the side of the road looking for work. … (Proponents say) ‘We’re not criminalizing workers or immigrants or anything like that.’ Yes they were. That’s exactly what they were doing.”

By extension, it was also a swipe at the Arizona measure’s principle author, Kansas Secretary of State Kris Kobach, who has worked with cities and states around the country to crack down on illegal immigrants.

Asked about Kobach himself, Norquist said “people can get attention with outrageous positions … but it’s not constructive for the country, it’s not constructive for the modern Republican Party.”


Contacted later, Kobach said Norquist doesn’t know what he’s talking about.

“Grover Norquist has excellent expertise in tax policy,” Kobach said. “He has no legal expertise in immigration law.” The Arizona law, he said, “didn’t criminalize anything that wasn’t already criminal under federal law.”

And he accused Norquist of “hypocrisy” on the immigration issue.

“The irony here is that Grover Norquist claims to deeply care about fiscal responsibility, but the amnesty he favors would cost taxpayers $2.6 trillion over 10 years … It’s unbelievable that he can hold those two opposing views at the same time.”

The cost, he said, would come from newly legalized immigrants being eligible for social services they do not now qualify for. “And that’s before Obamacare,” Kobach added.

Norquist spoke at a breakfast for legislators sponsored by the Kansas Business Coalition for Immigration Reform, a business group that is seeking a more orderly process for immigrants to enter and work in the United States.

The coalition includes the Kansas, Wichita, Topeka, Kansas City and Overland Park chambers of commerce, along with heavy hitters in the agricultural and construction sectors including the state’s Farm Bureau, Livestock Association, Contractors Association and Building Industry Association.

Norquist argued that immigration crackdowns are bad policy and bad politics for Republicans.

Economically, the ability to incorporate immigrants into the workforce is a major advantage the United States has over competitors such as China and Japan, he said.

“We’re way ahead of other countries in the ability to have immigrants come to the United States and become Americans very rapidly and contribute to the growth of our economy, both in big cities and in rural areas,” Norquist said. “It’s one of the strengths we have as a nation and I think it’s very important for us to keep an eye on that, because if you sort of get some stuff right, if you have the right tax policy but you’ve got the wrong immigration policy, you can do great damage to a state’s economy or the national economy.”

Politically, the issue hurts Republicans because even though polls might show majorities favoring crackdowns on illegal immigration, most don’t consider it important enough to influence their vote, Norquist said.

Those who do consider immigration a voting issue, especially Hispanic voters, are primarily on the other side, he said.

Hard-line immigration policies drive those voters away from Republicans, even though many generally agree with GOP stances on issues such as abortion and traditional values.

“So we’ll have a conversation saying: ‘Look, I want to talk to you about all the issues we agree on. Now, while we talk, you won’t mind if Igor here goes upstairs and grabs your aunt and drags her down the stairs and throws her across the border,” Norquist said.

Norquist likened calls for increased enforcement of current laws to the 55 mph national highway speed limit of the 1970s, which was routinely flouted by motorists.

“What we did do eventually is change the speed limit so that it matched reality,” We need to have an immigration law and enforcement that matches reality.”

Kobach said if his views are as outrageous as Norquist said, he’s in good company because at least 60 percent of the American people agree with him.

And Kobach said he doesn’t know how Norquist can gauge the intensity of people’s feelings on the issue.

“I think he’s making it up,” Kobach said. “He has to come up with a theory because massive numbers of Americans disagree with him.”

While several anti-illegal immigration bills are expected to be introduced this legislative session, they probably won’t get a lot of attention, said Rep. Steve Brunk, R-Wichita and one numerous lawmakers who attended Norquist’s speech.

Brunk said a fight over immigration isn’t worth it because it could divide Republicans and influence other high-priority GOP issues such as tax cuts, reducing spending and changing the way the state selects appellate judges.

“Anything new on immigration that could potentially split that up is going on the back burner,” Brunk said.