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Nominating Commission Is Gatekeeper to the Kansas Supreme Court

By   /   August 11, 2010  /   6 Comments

Kansas has the most elitist Supreme Court justice selection process in the United States. It is the only state that gives its state bar association majority control in selecting its Supreme Court nominating commission.

The system is elitist and needs to be changed, according to Dr. Stephen J. Ware, a law professor at the University of Kansas, because only 9,000 of Kansas’ 2.7 million residents holds majority power in electing commission members who select candidates for the Kansas Supreme Court. In the most recent commission member election only 30 percent of Kansas bar members voted, about one tenth of one percent of the state population.

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Glenn Braun, president of the Kansas Bar Association, told KansasWatchdog he favors the current system and is surprised the public and media have suddenly expressed interest in the system. “I know a lot of politicians have but generally that’s when they want to divert our attention from the real problems that exist.

“I would hope that the people with the authority to make the decision would look at this and know that there are far bigger and more important issues that we need to deal with on a statewide basis than changing constitutionally the selection of our judges.”

In the coming weeks Governor Mark Parkinson must select one of three names he will receive from the nine-member Kansas Supreme Court Nominating Commission to fill a vacancy left by the retirement of Kansas Supreme Court Chief Justice Robert Davis. Davis died on August 5, one day after retiring.

Four of the nine members of the commission are appointed by the governor, giving voters at least an indirect say in the process. Parkinson appointed one member and his predecessor, Kathleen Sebelius, appointed three of the current members. The other five – the majority – were elected by members of the Kansas Bar Association. Voters have no role in the bar’s selections.

Braun says lawyers are better suited for choosing judicial nominees. “Quite honestly, do you want the general public picking your doctor? I think lawyers are in a unique position to evaluate the candidates better than the population at large.”

Ware agrees that lawyers are better acquainted with judicial qualities and are an asset in the process but he does not favor such a disproportionate voice for lawyers. He says the current process replaces democratic principles with a system where lawyers define the pool of judicial candidates in a system that is not transparent to the public.

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“We, the public, can’t learn which of the commissioners voted for which applicant. All we know is which three finalists are selected by the commission,” Ware told a gathering of the Wichita Pachyderm Club August 6. “The commission is the gatekeeper.”

Ware said a more open and democratic process is important considering the law-making role of state Supreme Court judges who make more common law than federal judges. “In any court system it’s the Supreme Court, state or federal, that does the most law making. Lower courts make ruling but those rulings that can be reversed in higher court.”

One member of Ware’s Pachyderm audience who identified himself as a member of the bar asked, “Why fix a system that may not be broke?” Ware’s response: “We have two classes. This is not democracy. That’s broke. I don’t often hear people in the second class ask what’s broke about it.”

Braun says proponents of change in the system can’t put a finger on what’s wrong. “Have we selected bad judges?”

If the question is, has the system produced bad decisions by the court, Ware said, the decision is in the eye of the beholder. Most judge lawmaking is not controversial, but some sparks heated debate and political maneuvering. More than half of the state’s general fund budget is spent on K-12 education under the Kansas Supreme Court’s ruling in Montoy.

“Some of this lawmaking is predictably political in its dividing lines,” Ware said. “Liberal judges and conservative judges predictably rule differently on similar cases.”

The current commission system was twice rejected in 1953 and 1955 but lobbying by the Kansas Bar Association combined with public reaction to a political “triple play” to finally win passage of a Kansas Constitutional amendment in 1958.

The “triple play” happened when Governor Fred Hall, a Republican, lost the primary in 1956 to a challenger who then lost the general election. Hall stepped aside letting Lieutenant Governor John McCuish become governor for 11 days, long enough to appoint Hall to the vacant Supreme Court spot.

Ware wrote in a 2007 paper for the Federalist Society, “Selection to the Kansas Supreme Court,” that, “The lesson of the ‘triple play’ is that governors should not have absolute power over the selection of supreme court justices. ‘Power corrupts and absolute power corrupts absolutely.’”

In 1956 the Kansas Constitution had no check on the governor’s power to appoint justices to the Supreme Court similar to the U.S. Constitution’s check on presidential power through a Senate vote to confirm. The reaction of Kansas citizens to the “triple play,” and no doubt some State House lobbying, gave the check power to the unelected and supposedly apolitical Kansas Bar Association rather than the legislature.

“The public created this as a method to try to remove politics from selection of their judges, Braun said. “The lawyers didn’t create this, the voters did.”

Braun isn’t willing to say no politics are involved in the current system. “There’s an old saying that everything is politics. I don’t think anybody is naïve enough to believe that this system totally removes politics.”

Members of the Supreme Court Nominating Commission file no statements of substantial interest nor do they file Judicial Financial Disclosure statements, so it’s difficult to determine what may affect their choices.

However, political donations by commission members show they contribute more money and more often to Democrats and Republicans who vote with them. A 2009 Federalist Society study, Kansas Supreme Court Nominating Commission Lawyers 1987-2007, calculated political contributions by lawyers on the commission.

They made $140,932 in campaign donations and 83.5 percent went to Democrats. Contributions to Democrats

The governor’s four appointees are Democrats with strong histories of political activism and contributions. In the six years before her appointment to the commission in 2008, Katherine DeBruce, her husband and his company, DeBruce Grain, donated $13,000 to Kathleen Sebelius.

Why reform? Ware says the main reason is to support basic democracy and equality. “One person one vote.” He says reform should also address increasing the transparency of the process. “The secrecy of how the commission works now seems doubly troubling. It’s bad enough to give a small group of people a lot of power but then to have that power exercised behind closed doors seems especially troubling.

“We support the present system,” Braun said. “Does it mean we’re totally opposed to any changes in the system? No. But right now, quite frankly, I don’t see anything wrong with the system. it has worked perfectly well for a long time.“

Braun said the secret nature of the process isn’t constitutionally mandated and could be changed, something that would have to be considered by the commission’s chair.

“My opinion is that in a democracy lawmakers should be selected democratically,” Ware said. “We’re past the middle ages where we have nobles and serfs. We’re all equal citizens in a democracy. We should all have votes that are worth the same. That seems to me a no brainer, an easy point. I credit Karl Peterjohn (chairman of the Sedgwick County Commission) with the observation that really what the system does it makes lawyers first class citizens and others second class citizens.”


Related links —

Kansas Supreme Court Nominating Commmission on Judgepedia

Flashback:  Politics and the Kansas Judiciary, Kansas Watchdog, Aug. 27,2010.

Does the Kansas Supreme Court Selection Process Violate the One Person, One Vote Doctrine?, Joshua Ney, Washburn Law Journal, Nov. 19, 2009.

Selection to the Kansas Supreme Court, Federalist Society paper by Stephen J. Ware, 2007

Kansas Supreme Court Nominating Commission Lawyers 1987-2007, (PDF) Federalist Society, February 11, 2009

The Case for Partisan Judicial Elections, Federalist Society, 2003

The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court by Stephen J. Ware, Kansas Journal of Law & Public Policy, Spring 2009

Kansas Supreme Court Nominating Commission home page

Kansas’ justice-selection process unique | Top Stories | Wichita Eagle (kansas.com)

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Paul formerly served as staff reporter for Watchdog.org.