Analysis: The Sebelius Court

The appointment of Daniel Biles to fill the vacancy created on the Kansas Supreme Court by Chief Justice McFarland’s retirement is in some ways an anti-climax. When the nominating commission announced its three choices it was fairly clear which one Governor Sebelius would pick. As an attorney, Biles does not have a judicial track record that can be pored over to determine where he will take the law, but it is pretty safe to say that his appointment represents another significant leftward shift of the court. A major part of that is Chief Justice McFarland’s retirement*, but one must consider Biles’ record as a litigator (where for example he successfully advocated the Court’s ordering the Legislature to increase education spending). Now, an attorney has a job to do irrespective of his own beliefs, but it is implausible that he would be such a well-connected operator if he did not believe in what he argued for.

But while we must wait to see what impact Justice Biles will have on the law of Kansas it is worth noting that for the first time in its history a majority of the Justices of the Supreme Court will have been appointed by one Governor. For Kathleen Sebelius, a Democrat in an overwhelmingly Republican state, to claim this achievement is doubly notable. The Court she leaves behind as her tenure draws to a close has been stamped with her imprint.

And it is through those last two years of her tenure that we will see how the Court reflects the rest of her legacy. Conservative Republicans will doubtless note the symbolism of her appointing the architect of the Montoy case to the court as the State stumbles into a billion-dollar deficit they largely blame on that case. Democrats will see the Court as a firewall that can protect their interests in what looks to be an exceptionally challenging election cycle for them. And Sebelius herself ponders a Senate bid – one which is now uniquely vulnerable to the Court she picked handing down an unpopular decision.

Long after the Governor has moved on to other things, or retired from public life, the Kansas Supreme Court will extend her influence into the laws and precedents of the state. With Chief Justice McFarland’s retirement, the leadership of the State Judiciary automatically passes to Justice Robert Davis, but at least for the time being this won’t be the Davis court, but rather the Sebelius court.

*The Chief Justice has penned a few dissents in criminal cases in recent years, often the lone dissent. Most notable of these was Kansas v. Marsh which was ultimately overturned by the US Supreme Court. It is also fairly likely that that court will again endorse McFarland’s position and not her colleagues when it considers the case of Kansas v. Ventris later this month. [Note: both referenced cases were named as State v. … during their earlier history].

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