TOPEKA — Conservative lawmakers heard several options Saturday for changing how Kansas’ appellate and Supreme Court judges are selected in a discussion that may foreshadow a fierce debate in the upcoming legislative session.
Stephen Ware, a law professor at the University of Kansas, said Kansas’ judicial selection system is unusual and “undemocratic” in how it chooses its nominating commission.
Kansans elect a governor and the governor selects four members of the commission. But five of the members are elected by 10,000 or so members of the Kansas Bar Association.
Ware said Kansas is alone in giving the bar control of the majority of the commission. He said that violates the one-person, one-vote foundation of democracy by giving lawyers too much control in selecting judges via their private elections.
“It’s very political, but it’s out of the sunshine,” Ware said at a meeting of mostly conservative Republicans hosted by the nonprofit Kansas Legislative Education and Research group in Topeka. “Do you want your politics out in the open or do you want your politics behind closed doors?”
He said the state could reduce the number of commission members selected by the bar or the state could add Senate confirmation to provide more accountability.
Ware said he favors a third option — eliminating the commission and having the governor select judges with confirmation votes by the Senate.
Ware said some argue that once a judge is on the court, voters can kick them off in retention votes. But no judge has ever lost a retention election in Kansas, he said.
Incoming Republican Sen. Jeff Melcher of Johnson County said many of those retention votes are 100 percent.
“It appears there may be something flawed there,” he said.
When contacted Saturday, Wichita Democratic Rep. Jim Ward, a lawyer who is on the House Judiciary Committee, questioned why Brownback and other Republicans would want to shift to a selection process similar to what’s used in Washington, D.C., where many appointments remain vacant because of partisan conflicts.
He said Kansas’ system has worked well for decades.
“None of the telltale signs that there’s a problem are there," he said. “It’s not broken. This is a power grab. He’s trying to control all levers of state government, and I think it’s wrong."
Ward said the idea of having state Supreme Court judges elected would force judges to raise campaign money, hire political consultants and attack their opponents just as candidates for other offices do.
Brownback and other conservatives have fought for at least two years to let the governor nominate and Senate confirm judges for the Court of Appeals. Earlier this year, the Senate voted 22-17 against a bill that would have given Brownback that power.
Democrats and some moderate Republicans called it a politically motivated move that would give the governor too much power and abandon a process that has worked well for the state.
But after eight moderate senators lost to more conservative challengers in Republican primaries this fall, the Senate is expected to back the idea.
A change to appellate judge selection needs a majority vote in the Legislature. To change how state Supreme Court judges are selected, a two-thirds majority of lawmakers would have to approve a constitutional amendment that Kansans could vote on in an election.
Wichita Republican Rep. Steve Brunk said that would likely draw a lot of out-of-state money from other bar associations to campaign against a change.
But KU’s Ware said many voters would likely be convinced the state’s selection process isn’t open enough. He added that convincing them how to change it, such as giving the governor more control, could be difficult.
Ware said it would likely be easiest to persuade voters to vote in favor of having voters statewide elect judges, although he still favors legislative confirmation.
Rep. Lance Kinzer, R-Olathe, said that for people to have confidence in their judicial system, the state needs a system that provides openness and accountability and doesn’t exclude qualified individuals.
“If we do not change the selection process for judges in Kansas at the appellate and Supreme Court level, we will lose something very precious in respect for the rule of law,” he said.
Jonathan Bunch of the Federalist Society said about 22 states elect their judges, 13 have use a selection process like Kansas and five have some form of democratic appointment where the governor or legislature selects judges.
Attempts to change how states select appellate and state supreme courts have increased in the past decade, he said.
“In the last decade or so, you’ve seen governors saying they want greater hand in selection,” he said.