If Kansas had a different system for picking judges for its appellate courts, justice likely would survive. Different states do it differently. But that's not the same as saying Kansas' system is broken and demands constitutional change. It isn't and it doesn't.
Currently, Kansas is unique among states in using a nine-member Supreme Court Nominating Commission of five attorneys and four nonlawyers to sift through applications and forward the names of three qualified candidates to the governor, who makes the final selection to fill openings on the seven-member Supreme Court and the 13-member Court of Appeals. The attorneys on the nominating panel are chosen by attorneys from each congressional district; attorneys elect the chairman in a statewide vote.
Kansas' system makes sense: Surely attorneys are in the best position to find the best legal minds to serve on the state's highest courts. In 22 states, the responsibility falls to voters (and the special interests who pour millions of campaign dollars into such elections). Other states mimic the federal model of presidential nomination and Senate confirmation — increasingly the scene of partisan grandstanding and party-line votes.
But even as Kansas' Supreme Court Nominating Commission is accepting applications to fill the vacancy created by the retirement and subsequent death of Chief Justice Robert Davis, the state's system for filling appellate courts is taking flak.
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Critics such as Stephen Ware, a law professor at the University of Kansas, think attorneys shouldn't be a majority on the commission or be chosen by other attorneys.
GOP gubernatorial candidate Sam Brownback has said he'll advocate for change, with details to come soon.
Voters in the Nov. 2 general election also face something other than the usual rubber-stamping of appellate judges up for retention, with the Kansans for Life political action committee targeting Supreme Court Justice Carol Beier with a "Fire Beier" campaign for what the group claims is a vendetta against former Kansas Attorney General Phill Kline.
In short, the calls for reform from some are loud, even though any change will require amending the state constitution by two-thirds approval in the House and the Senate and a majority of voters.
Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers.
But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent.
In the absence of a strong case for change, Kansas should stick with what works.
Whatever Kansas does, it should not join the states in which, as retired U.S. Supreme Court Justice Sandra Day O'Connor warned this week, "judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution."