One of the most disturbing aspects of the investigation into the conduct of Gov. Ernie Fletcher’s administration has been the contempt shown by the governor toward the rule of law, and the foul disrespect he has for a co-equal branch of government — the Judiciary.
In just three years, we’ve witnessed the governor appointing campaign staffers and spouses of prominent Republican officials with no judicial experience to the bench, in lieu of qualified judges. We watched in disbelief as Fletcher appointed two campaign contributors as special justices to the Supreme Court to sit for just one case — his own appeal of Attorney General Stumbo’s investigation into his administration (after two sitting judges disqualified themselves).
We endured Fletcher’s recent line-item veto of language in the budget that created a number of new judgeships. Fletcher didn’t strike the spending for those positions, but instead deleted the language that required the voters to select the new judges in the November election so he could appoint the judges himself. And we all had to sadly witness Fletcher’s attempt to intimidate the grand jury and suggest they might be held personally liable for continuing to indict members of his administration after he issued his blank check version of a pardon.
Unfortunately, despite his criminal indictment, Fletcher is readying a second round of disgracing our judiciary, right before our eyes. As a result of illogical rules that make it profitable for sitting judges to retire before the end of their elected term, providing them increased pension benefits by retiring before July 1, we will soon face the specter of as many as three Supreme Court justices retiring early in the coming months.
Under Kentucky law, Fletcher has authority to appoint temporary replacements for the rest of the year; never mind that he continues to be a defendant in a criminal case that may involve the Supreme Court.
Most disturbing, though, is the very loud chatter that deals are being cut with judges running for several of the Supreme Court seats that Fletcher will appoint before the November election, thereby providing each with the distinct advantage of incumbency on the fall ballot. Nowhere is that prospect more evident than in Jefferson County, where Court of Appeals Judge William McAnulty and Circuit Judge Ann Shake are vying to replace retiring Justice Martin Johnstone.
Rumors have flown for weeks among insiders that a deal had been cut for Fletcher to appoint McAnulty to the vacancy created by Johnstone’s expected early retirement. Not only would such an appointment give McAnulty the inside track over Shake in the November election, it also might provide Fletcher a shot of oxygen from appointing the first African American to the state’s top court (although Shake would be only the second woman on the court).
But what would be the quid pro quo for such an appointment? How would the voters trust that McAnulty, or any other candidate appointed by Fletcher in advance of the election, wasn’t contaminated by the same filth that has infected the current administration?
When word of this potential judicial manipulation surfaced last week, both candidates were asked if they would even submit their names for consideration for a gubernatorial appointment. While McAnulty told one reporter that he would submit his name to Fletcher for consideration, the Shake camp told me she would not, believing the current climate and the involvement of the Supreme Court in the investigation of the governor would create an untenable appearance of a conflict of interest. While Shake did not challenge McAnulty to refrain from any deal-making with Fletcher, the implication was clear.
Justice Johnstone, a close personal friend of McAnulty and purportedly working to facilitate his appointment to the court, denies that any “deal” has been cut. But if such an appointment is completed, Louisville voters will have a clear option in November, as they would choose between one candidate who was hand-picked by an indicted governor in advance of the election versus the other candidate who refused to be a political football and found the price of her integrity too high to cut a deal.
In the meantime, Fletcher continues shopping for judges, and there appears to be no limit to what he’ll do, even if he must disgrace our Judiciary in the process.
Mark Nickolas is a former Democratic political consultant and publisher of Kentucky’s most widely read political blog, BluegrassReport.org, which recently won the Koufax Award for Best State or Local Blog in the country. Contact him at [email protected]