Lawton R. Nuss: Competition key to picking jurists

12/16/2012 12:00 AM

12/14/2012 6:08 PM

As a former Marine Corps combat engineer, I appreciate Army Gen. George S. Patton Jr. Just before his troops stormed Normandy beaches to help liberate Europe, he gave them a rousing speech. The general reminded them that they had all “admired the champion marble player, the fastest runner … and the All-American football players.”

Patton’s inspirational point? “Americans love a winner.”

What Patton said about Americans in 1944 is still true about Kansans in 2012. We love winners. Winners are produced by competition. And rugged competition has produced all of our state’s appellate jurists – Court of Appeals judges and Supreme Court justices – since 1958.

I know this because I started competing to become one in 1995. I joined 29 others in completing applications and submitting to investigations and interviews by the nine Kansans on the state nominating commission. The commission then selected three people from whom the governor would choose Kansas’ next Court of Appeals judge.

My qualifications were not good enough; I was not selected by the commission. Nor was I selected when I applied for a later position against 27 other applicants.

Because I was determined to earn a position as an appellate jurist, I tried to improve my competitiveness. I volunteered to research and write more appellate briefs for other lawyers, I sought more cases to try to Kansas juries, and I added different legal fields to my law practice.

In my third competition, in 2000, I was selected from 22 applicants as one of the three people submitted to the governor. But he did not choose me. So I worked harder to improve my credentials before the next vacancy.

In 2002 I competed against 17 other applicants wanting to become a justice on the Supreme Court. My name was again one of three sent to the governor. And this time I was chosen – by the same governor who had chosen someone else in 2000.

In my view, I was finally successful because I had steadily improved my qualifications since 1995.

But today new ways are being proposed to replace our 50-year-old competitive system of merit selection of Kansas appellate jurists (Dec. 9 Local & State).

When comparing systems, several fundamental features of our present system must be considered. First is the democratic feature. Our system grants the equal opportunity to be chosen an appellate jurist to each of the thousands of lawyers and trial judges with at least 10 years of experience. And to have a chance of earning such an important position, the person only needs to apply.

Second, and more important to all Kansans, is the quality feature. As my experience demonstrates, equal opportunity to all means that more than one person will apply. And that obviously means competition – one where politics and its money fortunately play no role. But without such a competition that compares side by side the qualification of numerous applicants, no new system can truly claim it produces the best appellate jurists for Kansas.

Even Patton’s “champion marble player” had to compete against all comers. As a fourth-generation Kansan, I say we should require no less for our appellate jurists. That is why I support our merit-selection system.

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