Judicial Selection Reform Needed in Sunflower State
“The basic issue here is democracy, where we have equal voting rights for all citizens.”
— Stephen Ware, Professor of Law, University of Kansas
Ware is not referring to an emerging democracy in a far-off nation. Rather, he’s talking about the lack of a democracy in his home state of Kansas, where judges are chosen secretly by an elite, unaccountable group of people. In fact, the judicial selection method used in Kansas is less accountable, less democratic than in any other state.
With human nature being what it is, it is not surprising that unaccountable judges act in an unaccountable manner. The result: in deep-Republican Kansas, we have some of the most activist, liberal judges in America.
Today, the Kansas Supreme Court not only functions as the top judicial branch but as a super-legislature, as the most powerful branch of Kansas government. The only action that will serve as a check or balance to our courts is an overhaul to the method of judicial selection.
An unaccountable, political process
One often hears of the goal for an “independent judiciary,” and it is a good goal, indeed. Under this theme, our nation’s founders intended for judges to be independent of changing political pressures, yet still fully accountable to citizens. The Kansas selection method is not only extremely political, but the process is also unaccountable to the voters. The process that is supposed to be independent of quickly-changing politics is instead independent of voters.
On the federal level, judges are accountable to voters, because they are selected by elected officials, people who are fully accountable to voters. Federal judges are appointed by U.S. presidents (we vote for them), and the appointments must be approved by U.S. senators (we also vote for them).
Notably, federal judges are not required to be lawyers, or to have a formal education in law. Qualification is determined by the common sense of our elected leaders.
But in Kansas, there is a nine-person Supreme Court Nominating Commission that submits the names of three lawyers to the governor, who then has no choice but to choose among these nominees, or else forfeit the same decision to the Supreme Court Chief Justice. Of the nine people on this nominating commission, four are chosen by the current or former governor. But five committee members — the majority — are chosen by Kansas lawyers.
Kansas has used the current selection system since 1958, when it replaced the direct election of judges. What I would like to see is a move to the federal model — the governor appoints, and the state senate confirms.
Lawyers are extremely Democratic, at least according to where they put their money. According to OpenSecrets.org, a project of the Center for Responsive Politics, lawyers contributed $93 million to Democratic federal candidates and political action committees during the 2010 elections. That’s compared to the $28.2 million donated to Republican candidates and PACs.
When I served in the Kansas House, we debated Kansas judicial selection method in the Federal and State Affairs Committee. To the experts who testified in favor of the current system, I asked: Is citizenship a requirement, in order for lawyers throughout Kansas to vote for the Supreme Court Nominating Commission?
Incredibly, the answer I received was “No.” Meaning, even non-citizens are legally allowed to play a significant role in the process of choosing Kansas judges.
Proponents of the current judicial selection method frequently refer to it as “merit-based,” but such a notion insults the good intelligence of the voters, who are fully capable of deciding the merit of their legislators, spouses, places of education, and cell phone providers.
“The current system of selecting our Court of Appeals judges and Supreme Court Justices disenfranchises all but the 9,000 Kansas lawyers,” said Alan Cobb, a lawyer and Vice President of State Operations with Americans for Prosperity. “The defense by some lawyers of the current system, that only they have the smarts and aptitude to choose who would and who wouldn’t be a good judge, is the height of elitism and arrogance.”
In a 2009 editorial about Missouri’s similar use of “so-called merit selection commissions,” The Wall Street Journal wrote, “The continued reign of a judiciary chosen by trial lawyers and Democratic partisans is showing signs that its time has passed.”
Professor Ware said, “Their argument for this favoritism for lawyers is that lawyers are more expert in selecting judges than other people are. And the problem with this argument, first of all, is that it violates democracy to give one group of people far more power than others.”
A false non-partisanship
Proponents also refer to the Kansas system as “non-partisan,” but that couldn’t be more untrue. Where there are humans, there are political views, and there are factions, whether or not these factions have formal party labels. Politics and partisanship exist in businesses, in churches, and among a group of lawyers. Often, partisanship will increase when there is no required transparency, as is the case in Kansas.
“The current system is political. It’s just that it’s the politics of the bar,” Ware said. “It’s the lawyers’ politics that’s hidden from the rest of the people in the state. And, frankly, it’s hidden politics, in the sense that it’s behind closed doors. The way that our nominating commission works now, it’s a secret which members of the commission voted for and against which applicants for a judgeship. And so we have now the problem of a small group of people having tremendous power, and making these important decisions, and they’re doing it behind closed doors.”
“There is an enormous amount of politics in the current system,” Cobb said. “The politics is limited to the small universe of lawyers who control the process. Let’s substitute the politics of the citizens for the politics of a select group of lawyers.”
Kansans may see some change as early as this year through legislation in Topeka.
There are three levels of courts in Kansas: local district courts, Court of Appeals, and the KansasSupreme Court. It only takes a basic law to change the way the two lower courts are selected; meaning, the approval of a bare majority of the House and Senate, followed by the signature of Governor Sam Brownback.
But to change the Kansas Supreme Court, it will require a constitutional amendment, which needs two-thirds support in both the House and Senate. Today, the House is controlled by conservatives, but the Senate is controlled by liberals.
House Judiciary Chairman Lance Kinzer supports judicial reform.
“It would be very difficult for us to get 2/3 in the Senate, but I think getting to a majority, that is to say, moving more towards the federal model at the Court of Appeals level, is potentially doable,” Kinzer said.
“The key point is that we need to have a process where people who are politically accountable are responsible for the selection of judges.”