There is another rumor in the Legislature that the current merit process for selecting judges in the courts that hear appeals in Kansas is so broken that it must be “fixed” with a political process that mirrors the selection of federal Supreme Court justices. This rumor is not true.
If those who select judges for our highest courts are knowledgeable and insulated from partisan politics, and if they are guided by proper rules and procedures, they will choose good judges. We have this in Kansas.
The linchpin of our system is a nine-member nonpartisan nominating commission. Four of the commission’s members are non-attorneys appointed by the governor. Four of the members are attorneys selected by attorneys in each of the four congressional districts. The commission is chaired by an attorney elected by attorneys in a statewide vote. Each member’s term is four years.
The commission’s work is familiar to anyone who has made an important hiring decision. It initially reviews resumes and an extensive application that must be completed by all applicants for the Supreme Court and the Court of Appeals. It then screens candidates and interviews the most qualified and investigates their references.
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After the applicants have been thoroughly vetted, the commission submits the names of the three who, in its consensus, are the most technically able and experienced to the governor, who must select an applicant from the list.
Judges are selected for retention by the voters statewide in an uncontested election every six years for the Supreme Court and every four years for the Court of Appeals.
Unlike political appointments, our current Kansas-grown system assures input from the public and the special knowledge of lawyers. Lawyers and non-lawyers alike have valuable perspectives on the qualities that judges should possess.
The work of the commission distinguishes the selection process in Kansas from the federal appointment process. No such commission is mandated by the U.S. Constitution. The president is a commission of one. Since federal judges, unlike our state judges, are given lifetime terms, Senate confirmation serves as an important check on the president’s power.
The criticism about judicial selection in Kansas has focused more often on the openness of the process than on the outcomes.
Consider this: In the 2012 “Lawsuit Climate: Ranking the State s” report published by the U.S. Chamber of Commerce’s Institute for Legal Reform, four of the five states with the highest overall rankings are states that use a commission-based appointment process for choosing appellate judges, and Kansas is ranked fifth. By the chamber’s measure, the current process is choosing good judges.
This is an important vote of confidence. A vibrant business climate that can create jobs depends upon Kansas’ commitment to the rule of law, especially to fair and impartial courts that bring stability and consistency to economic decision-making.
As for the criticisms of the process, consider this: According to a 2012 national survey by the American Judicature Society of members who serve on nominating commissions, lawyer and non-lawyer members report that the input of all is treated with respect and that lawyer members do not dominate the process. The lawyer and non-lawyer members also reported that the commissions were an appropriate check on gubernatorial power and were insulated from the influences of partisan politics.
Judicial selection in Kansas isn’t broken. Don’t fix it.