Governor Kathleen Sebelius will pick a replacement Kansas Supreme Court justice by Jan 12, 2009, when Chief Justice Kay McFarland retires. Will Gov. Sebelius appoint a judge, or a donor to her campaign and Barack Obama, to be the next Supreme Court justice?
In October only eight Kansas attorneys applied for consideration to fill the vacancy created by McFarland’s retirement. A May 8, 2005 Topeka Capital-Journal article, “Fewer state bar members belly up for court vacancy,” said that the 13 who applied in 2005 was “the smallest field in years.” The Journal commented:
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.
From the Topeka Capital-Journal, May 5, 2005:
In 2006, 14 applicants applied to replace Justice Donald Allegruicci in early 2007.
If 13 was an unusually small number of Supreme Court applicants in 2005, where is the commentary about the extremely low number of only 8 applicants in 2008? Like in 2005, there is no consensus why the small number of applicants is so small, but the Journal in 2005 speculated:
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.
- Karen Arnold-Burger, Municipal Court Judge [51, Republican, Overland Park]
- Christopher E. Biggs, State Securities Commissioner [50, Democrat, Junction City]
- W. Daniel Biles, attorney [56, Unaffiliated, Shawnee]
- Dennis D. Depew, attorney [50, Republican, Neodesha]
- Judge Robert W. Fairchild, Chief Judge, 7th Judicial District [60, Unaffiliated, Lawrence, a Gov. Graves' judicial appointee in 1996]
- Court of Appeals Judge Steve A. Leben [52, Democrat, Fairway]
- Ward E. Loyd, attorney [65, Republican, Garden City]
- Court of Appeals Judge Thomas E. Malone [almost 55, Democrat, Wichita, Sebelius' first judicial appointee in 2003, District Court judge since 1991]
In November 2008 the three applicants in bold above, Biles, Fairchild and Malone, were chosen by the Supreme Court Nominating Commission for the “final three” for consideration by Gov. Sebelius for the appointment.
All these recent finalists applied in Oct 2006 for the Supreme Court when Justice Allegrucci retired, and Fairchild and Malone were part of the “final three” then. Lee Johnson was picked over Fairchild and Malone in Dec 2006.
The two judges that made this final cut in 2008, Judge Fairchild and Judge Malone, were on the list of 13 in May 2005, with Fairchild making the final three then. Sebelius picked Eric Rosen over Fairchild in July 2005.
What is known about the politics of the “final three” and how does Sebelius factor politics into her decision?
W. Daniel Biles (sometimes, William D. Biles, like in his April 2008 Statement of Substantial Interests Form) is the most political active among the three candidates. (Gov. Sebelius in the past often shows preference to Democratic party donors and activists in her appointments.)
“Dan Biles” gave $1050 to Sebelius in 2001-2002 and “William Biles” gave $1500 to Sebelius in 2003 and 2005. “Dan Biles” gave $250 to Dennis Moore in 2004, $100 to John Vratil in 2000, and $100 to Greta Goodwin in 1998. “William Biles” gave $250 to Barack Obama in 2008.
Biles’ wife, Amy McCart, gave $1250 to Sebelius in 2002-2006, $250 to Paul Morrison in 2006, and $200 to Barack Obama in 2008. Biles is an unaffiliated voter, even though he mostly gives to Democrats. Biles’ wife, McCart, is a Democrat.
Biles, who has practiced law for 28 years, has been a member of the law firm, Gates, Biles, Shields & Ryan, P.A., in Overland Park sine 1985.
The “Gates” in that law firm is senior partner Lawrence Gates, who is the current chair of the Kansas Democratic Party, a close friend and confidant of Kathleen Sebelius, and huge donor to Kathleen Sebelius and other Democrats. Gates was Sebelius’ choice for KDP chair after she became governor.
The “Ryan” in that law firm was both Thomas Kelly Ryan and Nancy R. Ryan. Thomas Kelly Ryan was appointed by Gov. Sebelius to be a Johnson County District Judge in Sept 2008. T. Kelly Ryan is a Democrat and contributor to Sebelius, while his his wife, Nancy R Ryan is a Republican for Moore in 2008.
The law firm donated $2000 to Sebelius’ Inaugural in 2007. Should we be concerned that an appointment of Biles to the high court would be little more than a quid pro quo for the Gates’ $15,000 to Sebelius’ gubernatorial campaigns?
Biles was part of the legal battle over the definition of a “suitable education” in the Kansas Supreme Court as the General Counsel for the State Board of Education. Biles was part of the legal battle over the definition of “lottery” as an attorney for the Kansas Lottery Commission. (In 1994, the Supreme Court ruled the term “lottery” was broad enough to cover slot machines and other casino games.) Should we fear what other words may have different definitions for Biles?
Robert W. Fairchild, is an unaffiliated voter, while his wife is a registered Democrat. Fairchild was appointed to the Douglas County bench in 1996, after practicing law since 1973. Since becoming a judge, Fairchild has made no known political contributions.
Before becoming a judge, Fairchild made three small political contributions: $100 to Carla Stovall in 1995, $50 to Wint Winter in 1994, and $100 to Jim Slattery in 1994.
Fairchild has close ties to Democrat Attorney General Six, since they were judges at the same time in the same Douglas County courthouse. Fairchild introduced Six before Six took his oath of office.
Thomas E. Malone and his wife are both registered Democrats. Neither have made any known political contributions.
Malone was Sebelius’ first judicial appointment in 2003 when she appointed him to the Kansas Court of Appeals in March 2003, after Malone had served as a District Court judge since 1991. Malone started practicing law in 1979.
After this appointment, Gov. Sebelius’ appointments to the Supreme Court will be the majority:
…Sebelius’ fourth appointment, making her the first governor to have appointees comprising a majority on the seven-member court. Wichita Eagle, Nov. 15, 2008.
Sebelius’ previous Supreme Court appointees include:
- Carol Beier in 2003
- Eric Rosen in 2005
- Lee Johnson in 2006
In past articles the Meadowlark revealed the political party makeup of the Supreme Court Nominating Commission, and the political makeup of the Supreme Court itself, do not reflect the political makeup of the State of Kansas. Citizens of Kansas should have little faith in its high court when politics drives its membership more than the rule of law.
Unlike the U.S. Senate confirmation process, Kansas Supreme Court justices are not subject to confirmation hearings, but face retention elections after the first year and every six years after that. Sadly, the nomination process in Kansas hides political money from the public. The public has a right to know about any and all political contributions before an appointment is made.
Whom will Sebelius choose now? If the appointment is about politics then Biles has the edge. Otherwise, this will be the third time to the “Final Three” for Fairchild, and the second time for Malone. Fairchild and Malone seem to be roughly tied: Can Fairchild’s ties to A.G. Six counter Sebelius’ original appointment of Malone to the Court of Appeals?
- Kansas Chief Justice admonishes fellow justices for denigrating Phill Kline, Kansas Meadowlark, Dec 5, 2008.
- Kansas Supreme Court Vacancy: list down to three, Kansas Progress, Nov 22, 2008.
- Attorney for school boards and gaming interests among Supreme Court justice nominees, Kansas Liberty, Nov 14, 2008.
- Three names pitched for Supreme Court slot, Topeka Capital-Journal, Nov 14, 2008.
- Dan Biles in final three for KS Supreme Court, Kansas City Star prime buzz, Nov 14, 2008.
- Did $13,000 given to Gov. Sebelius play part in Supreme Court Nominating Commission appointment?, Kansas Meadowlark, June 28, 2008.
- Updated Political Profile of Members of the Kansas Supreme Court Nominating Commission, Kansas Meadowlark, Dec 16, 2007.
- Why did a Kansas Supreme Court Justice Change Political Parties?, Kansas Meadowlark, Dec 4, 2007.
- Key players in the Kansas school finance debate (Biles), Hays Daily News, Jan 1, 2003.
- Corporate ladder (Biles), Kansas City Star, Jan 9, 1996.