The founding fathers of our nation and our state envisioned three equal branches of government. Each branch has defined powers, to guarantee that no branch had superiority over the other.
Judicial review, while certainly contemplated by some of the founding fathers, is not spelled out in the constitution. Judicial Review is a product of court action and precedent that has evolved, rather than actual constitutional authority. That evolution has created many activist judges and courts, substituting their will for the constitution and the people. This potential was not unforeseen by the founding fathers, however they thought the structure they put in place made judicial superiority unlikely. Without the power of the executive branch, or the purse strings of the legislative branch, the courts were the least likely to overstep its bounds.
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815
Perhaps the founding fathers did not take into consideration growing apathy on the part of the citizenry or the reluctance to protect our republic principles on the part of our leaders. Regardless of the reason, there is no question that there has been a gradual encroachment and our courts have grown bolder in their attempts to put their views ahead of the people as set forth in the constitutions of our nation and the various states.
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820.
We all have a role in protecting and preserving our government. Our leaders are especially responsible for protecting the government. We elect 125 house members and 40 senators. We elect only one person that represents the state as a whole: the Governor. Our constitution gives the Governor an important role in the legislative process, as evidenced by the power to veto or sign legislation. In 2005, Governor Sebelius failed to fulfill her obligation to either work with the legislature for compromise, or veto a bill she did not like. Her inaction challenges the very principle of representative government upon which this state and nation were founded.
The Governor's inaction shows a failure to lead and an unwillingness to protect our citizens' right to representative government. The court's actions are a bold encroachment on the legislative and executive branch's role to set state policy.
It is my belief that the court was wrong in their assessment that our school finance formula was unconstitutional. In my opinion, it is not a good formula, but it is not unconstitutional. That alone should be reason enough to question the court, but when they attempted to control the purse strings, clearly a legislative role, they went too far.
What is the solution?
Judicial appointments have been an important part of the last several presidential elections. Considering court actions across the nation, as well as in Kansas, judicial appointments should be an important part of our gubernatorial elections as well. However, that is not enough. Our selection process utilizes a nominating commission that is controlled by the members of the Kansas BAR, not all of Kansas. The members of the BAR that control the nominating commission do not represent the judicial philosophy of the entire BAR or Kansas as a whole. Consequently, the nominees from which the Governor can choose, are for the most part, judicial activists. We need to do away with the nomination commission and allow the Governor to select from the entire pool of Kansas legal minds. The Governor's nominee should then be confirmed by the Senate, just as is done on the federal level.