Proponents of changing how state appellate judges are chosen may have the votes in the 2013 Legislature. What they still lack are the reasons to do so – especially with the U.S. Chamber Institute for Legal Reform having newly ranked Kansas as fifth in the nation for the legal climate in its state courts.
The institute was founded by the U.S. Chamber of Commerce 14 years ago “to address the country’s litigation explosion,” and only Delaware, Nebraska, Wyoming and Minnesota fared better than Kansas in its 2012 State Liability Systems Ranking Study. Neighboring Colorado, Missouri and Oklahoma landed, respectively, in 23rd, 34th and 42nd places.
Kansas’ standing among states improved from 14th in 2010; over the past decade, its lowest ranking has been 16th place, in 2005. Among individual categories this year, Kansas ranked eighth for “judges’ impartiality” and ninth for “judges’ competence” – categories where you’d expect red flags if there were a compelling need for reform in judicial selection.
Kansas also was fifth best among states in the category of damages – something the Kansas Supreme Court did nothing to change Friday when it upheld the state law capping noneconomic damages at $250,000 in personal injury lawsuits.
In addition, Kansas’ selection system for its state Supreme Court justices and Court of Appeals judges got an important endorsement last month from the Denver-based 10th U.S. Circuit Court of Appeals.
Currently, a nominating commission of five attorneys and four non-attorneys from across the state puts applicants for open seats on the state appellate courts through a rigorous screening and gives the governor three names to pick from. As the federal court rejected a challenge to Kansas’ system, it noted that Kansas voters created the nominating commission in the 1950s after a governor shamelessly engineered his own appointment to the Supreme Court. “The commission is designed to ensure the conduct of the executive branch does not threaten the integrity of the judicial branch,” wrote Judge Terrence O’Brien, calling the 54-year-old constitutional amendment’s “vintage a testament to the state’s time-honored commitment to judicial independence.”
Yet Gov. Sam Brownback and other conservatives want to do away with the commission and let the governor make the appointments outright, subject to state Senate confirmation. The moderate GOP leadership of the state Senate has blocked such a reform until now, realizing it could threaten the independence, quality and impartiality of the judiciary. But the August GOP primary swept many of those senators out of office. The governor may now have enough legislators’ votes to change the law regarding the state Court of Appeals and to send a constitutional amendment to voters that would change how justices are chosen for the state Supreme Court.
Before that happens, though, Kansans should demand to know why any change is necessary, especially when Kansas’ court system is highly regarded nationally as being good for business. Justice in Kansas will suffer if political connections, not legal qualifications, start determining who sits on the state’s highest courts.