TOPEKA, Kan. (AP) — The Kansas Supreme Court’s decision to overturn two brothers’ death sentences for a notorious robbery, rape and killing rampage will likely fuel another push by conservative Republicans to give the governor and legislators more say in how the justices are chosen.
Senate Majority Leader Terry Bruce said the judicial selection process will “absolutely” be an issue when legislators reconvene in January because of the court’s rulings last week in the cases Jonathan and Reginald Carr. The Nickerson Republican said the rulings weren’t surprising — the court hasn’t upheld a death sentence in two decades — and many members of the GOP-dominated Legislature believe the justices have shown an “activist” streak.
The Supreme Court on Friday voided the brothers’ death sentences, saying they should have been granted separate sentencing hearings, and sent the case back to Sedgwick County District Court.
The criticism was swift, in part because the case is well-known: Three men and two women were robbed and forced to perform sex acts before they were taken to a snow-covered soccer field and shot, one by one, as they knelt in December 2000. One woman survived being shot in the head and became a key witness.
The last executions in Kansas were in 1965. Several conservative GOP legislators said the Carr rulings show that the current court won’t ever clear the way for an execution.
“They don’t reflect the values and intent of the people of Kansas,” said Rep. Scott Schwab, a conservative Olathe Republican. “There are more moderate and liberal justices on the court, and Kansas is not a moderate and liberal state.”
Five of the seven justices were appointed by Democratic governors. The other two, who are the most senior, were appointed by moderate GOP Gov. Bill Graves in 2002.
Friday’s ruling came days before Justice Nancy Moritz — the only member of the seven-justice Supreme Court to argue for upholding the Carr brothers’ death sentences — departed for a federal appeals court judgeship. That will give conservative GOP Gov. Sam Brownback his first appointment to the state court.
Fourteen judges and attorneys have applied for the vacancy. The nine-member Supreme Court Nominating Commission, mostly made up of attorneys chosen by other lawyers, plans to interview the applicants next week in public meetings. Three finalists will be submitted to Brownback. Lawmakers aren’t officially involved.
Supporters of the current nominating process argue that it eliminates partisan politics so the selection process can focus on applicants’ skills and work history.
“There will always be cries for the heads of judges when they make difficult and unpopular rulings,” said Rep. John Carmichael, a Wichita Democrat and attorney. “It’s an imperative that we have independent courts.”
But critics contend that it gives a small group of attorneys too much power. Brownback has publicly called it undemocratic.
The same process was in place for state Court of Appeals judges, but conservative GOP legislators changed Kansas law last year to cut out the nominating commission and have the governor make appointments, subject to Senate confirmation. The process for Supreme Court justices is harder to change because it’s spelled out in the Kansas Constitution, requiring approval from two-thirds majorities in the Legislature and a simple majority in a statewide vote.
Senate Judiciary Committee Chairman Jeff King, an Independence Republican, said legislators shouldn’t change the selection process because of a particular court ruling, but instead because they believe, as he does, that the current process isn’t accountable enough to the public.
King acknowledged that fellow legislators have been concerned about a string of rulings in capital punishment and other cases.
“Justice is best administered when the people administering it are a cross-section of the public,” he said.
Brownback’s first Court of Appeals appointment under its new selection process was Caleb Stegall, his chief counsel. The Republican-dominated Senate confirmed him. He has applied for the Supreme Court vacancy.
Rep. Jim Ward, another Wichita Democrat and attorney, accused GOP conservatives of politicizing the Carr brothers’ case.
“They’re mad because they can’t pick their buddies for the Supreme Court,” he said.