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Kansas' justice-selection process unique

  • Eagle Topeka bureau
  • Published Tuesday, August 10, 2010, at 12:06 a.m.
  • Updated Wednesday, August 18, 2010, at 12:52 p.m.

Editor’s Note: A previous version of this story incorrectly stated the process for changing the state constitution. The story has been updated.

TOPEKA _ There is a push in Kansas from conservatives to change the way state Supreme Court justices are selected.

Currently, state Supreme Court justices are picked by a nine-member nominating commission; four of those commissioners are non-lawyers appointed by the governor. The other five, including the chair, are elected by lawyers.

That selection process means a select group in Kansas pick the majority of the board.

"You have basically 2.7 million people in Kansas who have no vote in that election (of the attorneys on the commission) and 9,000 people who get to vote," said Stephen Ware, a law professor at the University of Kansas.

Kansas is the only state where attorneys, nominated by attorneys, hold a majority on the selection committee.

Twelve other states — including Oklahoma, Missouri, Nebraska and Iowa — use the nomination process, but attorneys don't make up a majority of the nominating committee.

In 22 states, judges are chosen by voters.

In 13 states, the governor nominates the judge. The nomination is confirmed by one or more chambers of the Legislature.

In South Carolina and Virginia, the Legislature appoints judges.

"Kansas is kind of in a unique situation, and we've been hearing this criticism of Kansas for a while," said Malia Reddick, director of research and programs for the American Judicature Society. The society supports selecting justices through a nomination process, which it refers to as a merit selection system, opposed to elections.

"One of the arguments that we constantly hear against merit selection is it takes away the public's right to vote," she said. "Based on research that we have done, in a lot of states, judicial selections at the trial court level are rarely contested."

Furthermore, every six years voters are asked during the election whether a certain justice shall be retained, giving Kansas voters a say in their top justices, she said.

State Rep. Lance Kinzer, R-Olathe, chairman of the House Judiciary Committee, is one of the lawmakers who has been pushing for a change to the system.

"Our current system gives attorneys too much control over the nominating process," said Kinzer, himself an attorney.

Ideally, Kinzer would like to see Kansas pick its Supreme Court justices in a way more akin to the federal process where the president makes a nomination that then goes through a confirmation process by the Senate.

That process guards against pure politics or cronyism, he said.

Process dates to 1950s

Glenn Braun, president of the Kansas Bar Association, said that the current process works well. Four of the attorneys come from different congressional districts in the state, ensuring a geographic diversity on the commission, he said. Additionally, members of the commission are limited to two terms, he said.

When the current process was put into place in the 1950s, the aim was to take politics out of the process, he said.

The change came after an event commonly referred to as the "triple play" where then-Gov. Fred Hall was defeated in the Republican primary in 1956. He resigned from office with about two weeks left in his term. When Hall's lieutenant governor, John McCuish, became governor for 11 days, one of his first acts was to appoint Hall as chief justice of the state Supreme Court.

After that Kansans changed their system to the current appointment process, often called the Missouri Plan, after the state to first implement it.

At the time people thought "the lawyers are the ones that appear in front of the judges; the lawyers are in a unique position to evaluate the judges," Braun said.

It is not clear how much of an issue judicial selection will be in the upcoming election. Neither gubernatorial candidate has focused on judicial selection as a campaign issue, although Republican U.S. Sen. Sam Brownback has hinted that he might.

"Is there a problem with the way it is done now?" asked Seth Bundy, spokesman for state Sen. Tom Holland, D-Baldwin City, the Democratic candidate for governor.

If it were something people started to talk about, the campaign would look at the issue, he said, but "the current system seems to be working well and it has kept politics out of the process."

Brownback believes that changes need to be made to how Kansas selects judges and plans to unveil those proposed changes over the next month as part of his "Road Map for Kansas," said spokeswoman Sherriene Jones-Sontag.

Brownback did not give details Monday on what changes to judicial selection he would like to see made.

Basis in constitution

One reason candidates might not be focusing on the judicial selection process is it is not something that typically resonates with the average voter, said Burdett Loomis, political science professor at the University of Kansas.

"They don't understand it the way they do jobs or schools or something like that," he said.

While some groups disagree strongly with decisions the courts have made, there haven't been any large-scale scandals that would indicate the system is broken, he said.

"The Supreme Court has functioned pretty well, by and large," he said.

Kinzer said he has always found support for changing the judicial selection process, but making the change is not as simple as passing a new bill.

The process for changing Supreme Court judicial selection in Kansas — including the nominating commission makeup — is laid out in the state constitution. Changing the constitution requires a two-thirds vote in the House and the Senate and approval of voters during a general election.

"We've had many years in a row where we've had good hearings on the issue," Kinzer said. "There has always been significant support for the idea of reform, but not support that would rise to the level of two-thirds."

Power shift

Changing the way judges are nominated could change the kinds of justices Kansas has sitting on the high court, Loomis said, particularly if the justices are nominated by the governor and confirmed by the state Senate.

While there have been several Democratic governors over the past 50 years, the Republicans have controlled the Senate that entire time, he noted.

"I think that the system we have now works fine and it probably produces more moderate justices, more people who are less politicized," he said.

Changing the process to include a Senate confirmation process would likely give Republican governors more power and take power away from Democratic governors, he said.

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