Bluegrass Politics: The forgotten branch

Among the least familiar, yet most important, votes you will cast on Nov. 7 are those for the many judicial races, particularly the Kentucky Supreme Court.

Those who are familiar with this column know I frequently spend time shining light on (some say “bashing”) the Kentucky Supreme Court. Many people wonder why, particularly since I’m not an attorney and the judiciary is usually the least noticed of our three branches of government.

The truth is, my interest in the courts began in November 2000, when I was one of those 50 staffers in Nashville who Vice President Gore flew to Florida in the wee hours of that infamous day after the 2000 presidential election.

For the next 36 days, I found myself in the trenches of the Florida recount. It was around 2:45 p.m. on Saturday, Dec. 9, 2000 — having just completed a procedural meeting with Lee County elections officials for the full recount that was about to begin — that I learned the U.S. Supreme Court had issued a stay in the case of Bush vs. Gore. Unbelievably, the highest court in the land told us to stop counting votes in a presidential election that hung in the balance.

Three days later, by a 5-4 vote, the Supreme Court ruled in favor of George W. Bush. The following day, Gore conceded. In his dissent, Justice John Paul Stevens minced no words about the damage this decision would cause to the integrity of the Judiciary:
“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Justice Stevens’ words stuck with me. It was the first time in my life that I remember feeling the weight of our judicial branch of government and an appreciation for the selection process that goes into picking judges. The consequences of that 5-4 decision, and the awarding of the presidency to George W. Bush, has no doubt profoundly impacted the course of our nation.

Here in Kentucky, the state Supreme Court has also found itself front and center in several major clashes between our branches of government, the most critical being the power of our governor to grant blanket pardons when it came to wrongdoing by his own administration.

In that case, the high court ruled in favor of Gov. Ernie Fletcher’s (R) effort to slam the door on the Merit System investigation into the actions of his top officials, granting him sweeping executive powers and casting another pall over our faith in the judiciary.

The Courier-Journal described the ruling as a “precedent for cover-up,” arguing that the court granted “a governor unchecked power to interfere in and, at his will, nullify an inquiry by a sitting grand jury into his own administration, by issuing pardons before anyone has even been charged.”

But the harshest condemnation came from within the Court in a foreboding but thoughtful dissent offered by Justice William Cooper. Reminiscent of Justice Stevens’ powerful dissent in the Bush vs. Gore matter six years ago, Cooper warned:
“History will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor’s scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury.”

Cooper was right. The dreadful Supreme Court ruling opened the door to future corrupt governors who abuse their pardon powers to stop any prosecutor from pursuing allegations of official corruption at the highest level in hopes of preserving their power.

The Fletcher decision came during a time of the growing and disturbing politicization of the Kentucky Supreme Court, compounded by the open contempt that Fletcher himself has shown to the rule of law, and the foul disrespect he has demonstrated for our judiciary, a co-equal branch of government.

During his three years in office, Fletcher has littered Kentucky’s courts with appointments of campaign staffers, donors and spouses of prominent Republican officials who had little or no judicial experience.

Even more troubling was Fletcher’s shameless efforts to pack the appellate courts with temporary appointments at the very time the criminal case against him was on appeal, including two campaign contributors who he named as special justices to the Supreme Court to sit for just one case — his own criminal appeal!

Louisville, too, found itself at the center of Fletcher’s court-packing when former Justice Martin Johnstone decided to retire this summer before the end of his term. At the time, two well-regarded candidates — Court of Appeals Judge William McAnulty and Circuit Judge Ann O’Malley Shake — were engaged in an especially competitive race to succeed Johnstone.

But Johnstone’s vacancy gave Fletcher another opportunity to temporarily fill a seat on the Supreme Court at the very time the criminal case against him was active and would likely find its way back to the high court in short order.
Many (including me) urged both McAnulty and Shake not to ask a governor under indictment for a temporary appointment to Johnstone’s seat, and instead allow the voters to make that decision in November. To do so would cast another dark cloud over the integrity of the Court and make voters wonder what sort of deal was made for that seat and what quid pro quo would be expected.

Shake immediately announced she would not ask for the appointment and would try to win the seat outright at the ballot box. Unfortunately, McAnulty instead opted to ask our indicted governor for the judicial handout, and he was quickly appointed by Fletcher to the Supreme Court for the remaining few months of Johnstone’s term, accompanied by a lavish swearing-in ceremony to boot.

In my opinion, the opposite decisions by Shake and McAnulty are part of the larger story that has been playing out over the disturbing politicization of Kentucky’s Judiciary.

Sadly, while many of us have concluded that the cancer of good ol’ boy politics and backroom deal-making has metastasized into the organs of the executive and legislative branches, the Judiciary had remained, largely, the last sanctuary of good government and the link that keeps us believing we are governed by facts and the rule of law, not our political friends or party affiliation.

In the case of Judge Shake, it was her refusal to be used as a political pawn by Fletcher, knowing that decision would put her at a competitive disadvantage in her race, that gives me hope for the future of our courts.

To the average voter, not much thought is given to the mundane workings or the make-up of our courts. No doubt, their work is tedious and their opinions don’t often grace the front page of newspapers. But as we’ve seen with Bush vs. Gore and in the case against Fletcher, its decisions do have profound consequences.
I hope you give that some thought before you cast your vote on Nov. 7.
Mark Nickolas is publisher of Kentucky’s most widely read political blog, Contact him at [email protected]