America’s Heartland is quietly beating with a desire for conservative change. Gov. Sam Brownback has already performed open-heart surgery on our antiquated appellate court system, but now the question remains whether the Legislature has moxie enough to do it again and fix the nominating process for the Kansas Supreme Court – an overhaul requiring a constitutional amendment.
Right now, the Supreme Court selection process is bizarre – nothing like the federal model in which the chief executive nominates a candidate whom the Senate then confirms or rejects.
In Kansas, a special committee chooses three candidates for the governor’s review. Required to pick from this short list, the governor then appoints one of the candidates as the new justice on the Supreme Court.
Nothing seems to be the matter with Kansas, until you look at the composition of the nominating commission: Four are selected by the governor, and five are selected by attorneys. Kansas boasts 2.9 million citizens, while only 10,000 are attorneys. This minuscule group of unelected lawyers makes critical decisions that affect millions of Kansans. This not only violates basic principles of republicanism, it’s downright un-American.
Though 13 states use a similar appointment process, which sometimes goes by the erroneous name of “merit selection,” only Kansas gives majority control to an unaccountable group of lawyers. The procedure puts final appointment authority in the hands of trial lawyers who just last week may have been having coffee with the same tort-baron friends they are now recommending for the state’s highest court. These court-controllers never stand for election, allowing them to subject the rule of law to their personal political ideology.
A recent paper by Vanderbilt University law professor Brian Fitzpatrick published by the Missouri Law Review shows that when it comes to politics, lawyers lean left. Examining data from Tennessee and Missouri, both states that also use the “merit selection” process, Fitzpatrick found that “the amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans.”
That’s like asking the CEO of the biggest corporations in Kansas to select our state’s commerce secretary.
After reforming the Kansas Court of Appeals to follow the federal judicial model earlier this year, Brownback explained the reasoning behind the new process. “This is not about controlling judges,” he said. “Judicial independence is vital and necessary for fair and just rulings from our courts. But judicial independence must rest firmly on the consent of the people.”
Though mimicking the federal Constitution seems sensible, reformers faced plenty of diatribes from Democrats. House Minority Leader Paul Davis, D-Lawrence, insisted the change was a Brownback power grab attempting “to hijack an independent process in favor of a political one.”
The idea that lawyers on the nominating commission will abandon their own political interests and instead use the nominee’s qualifications as their only litmus test is also used by those opposing Supreme Court reform. But men and women, upon entering the committee room, cannot simply check their political views at the coatrack. Nonpolitical decision makers are mythical creatures.
Reforming the Supreme Court nominating system demands political chutzpah, but adopting the federal judicial model will dissipate the dreaded tyranny of the minority that the Federalist Papers warned about. The Legislature must have courage to reform the Supreme Court, and Kansans must have the will to ratify the constitutional amendment.
Kansas must ensure that the rule of law is no longer subject to the ideological whims of unelected and unaccountable lawyers. The fight is noble, because justice is worth it.