Judicial Selection Reform Needed in Sunflower State – KC Monitor column

Judicial Selection Reform Needed in Sunflower State

The KC Monitor
03.03.11 | By: 

“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.

What this means: No mat­ter who we elect as Kansas gov­er­nor, lawyers con­trol the Kansas Supreme Court.

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.”

Original link: http://kcmonitor.com/columnists/kansas-report/judicial-election-reform-needed-in-sunflower-state-824