In making its interviews with candidates for the Kansas Supreme Court and Court of Appeals newly open to the public and media, the Supreme Court Nominating Commission is taking a welcome step that is likely to fortify public trust in the court system — but unlikely to satisfy those who want to overhaul how Kansas picks these judges.
As of the interviews of Court of Appeals candidates to be held Feb. 17-18, Kansans can observe both the prospective nominees and the process, getting a better understanding of the qualifications and values that the nine-member commission looks for as it assesses the merits of the candidates and settles on three names to recommend to the governor for appointment to the bench. Of the 33 states that use such nominating commissions to fill appellate court openings, Kansas will be the 11th to open its interviews to the public.
“Kansans now can see for themselves how well the nonpartisan merit-selection process works,” said Anne E. Burke, the Overland Park attorney who chairs the commission.
Given that the commission is as old as Kansas’ merit-selection system — adopted in 1958 after then-Gov. Fred Hall engineered his own appointment to the state Supreme Court — Kansans might wonder why it took so long to open the doors. The commission is a government body that seemingly should have been subject to the Kansas Open Meetings Act all along. (Asked by The Eagle editorial board about the closed-door policy, the Kansas courts’ information officer, Ron Keefover, pointed to a 1982 opinion issued by then-Attorney General Robert Stephan advising that the commission could decide itself to conduct its meetings in full public view, but couldn’t be forced to do so by the Legislature.)
In any case, the move toward transparency is wise.
But don’t expect the open meetings to quiet the commission’s critics, for whom a lack of transparency has been only part of the problem. Though the partisan “Fire Beier” effort to unseat several Supreme Court justices failed miserably in last month’s election, the calls for reform are likely to multiply. As a state senator, Attorney General-elect Derek Schmidt unsuccessfully pushed for Senate confirmation of high court justices. And Gov.-elect Sam Brownback has questioned whether the current system is constitutional and also endorsed talk of reform, without specifics.
The new openness may even serve the reformers’ case, undermining arguments that the system was working fine as it was.
Stephen Ware, a University of Kansas law professor who has crusaded for a selection system less dominated by attorneys, called the open interviews a “tiny, barely noticeable change” that won’t affect the commission’s deliberations — “secrecy where it matters.”
If the new governor and newly empowered conservative majority in the Legislature push to change judicial selection, reform must not be driven by partisanship and ideology. If the goal isn’t an impartial, independent judiciary that serves the rule of law, it will be wrong for Kansas and justice.