What Gov. Matt Bevin and his team of lawyers attempted takes judge shopping to new heights.
Follow their argument to its logical conclusion and Bevin could neuter an entire branch of government, at least in terms of deciding the fate of the public pension law enacted this year by the legislature and challenged by public employees and the attorney general.
If, as Bevin's lawyers argue, Franklin Circuit Judge Phillip Shepherd should be removed from the pension case because of a conflict of interest, then so should the entire state Supreme Court, where the challenge will inevitably land, because all of the justices have the same conflict alleged by Bevin's legal team.
Then, once all seven justices had been conflicted off the case, guess who would pick the judges to decide the law's constitutionality? None other than Matt Bevin.
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Bevin, who seems to think he governs not because of an 83-vote victory in a Republican primary but by divine right, would no doubt love to appoint the judges, not just in this case but all cases. He's implied as much during radio tirades against Shepherd.
Bevin's repeated attacks on one judge in particular and all judges in general should concern Kentuckians who think the constitutional separation of powers has served our country and state well. The three branches of government — judicial, legislative and executive — check and balance each other, preventing any one branch or official from seizing too much power and trampling other people's rights. It's basic civics. We would never suggest that judges are above criticism. But Bevin's Trumpian attacks go beyond the pale well into the realm of demagoguery.
Not surprisingly, Chief Justice John D. Minton Jr. on Thursday rejected Bevin's request to replace Shepherd with a special judge, a decision that allows oral arguments to go on as scheduled Thursday. The new pension law begins taking effect next month, and Shepherd, judiciously enough, has said he wants to decide the constitutional issues by then, while the Bevin team is trying to delay and stall.
Minton rejected the argument by Bevin's chief counsel M. Stephen Pitt that a judge who has a public pension cannot impartially sit in judgment of legislation that might affect that pension. The law that's being challenged in Kentucky has no effect on the pension system for judges, but Pitt has argued that concerns about actions the legislature might take on judicial pensions in the future would bias a judge.
Minton found the case law cited by Pitt not germane. In one case judges recused themselves because they were actual parties to the lawsuit before them. In another case cited by Pitt, judges recused themselves because they were part of a class that had brought a suit challenging changes in the formula for calculating their retirement benefits. Both had a direct interest in the cases. "Neither of these potentially disqualifying circumstances applies to the present case," wrote the chief justice.
Bevin wanted Minton to appoint a special judge from a pool of 22 people who became judges since 2014, when the judicial pension system was changed. Some of those 22 are Bevin appointees.
Bevin and his lawyers should quit playing cynical games and get on with arguing the case on its merits.