Professor questions judge selection / LJWorld.com

Archive for Saturday, December 8, 2007

By Stephen J. Ware

December 8, 2007

State Rep. Paul Davis, speaking for the Kansas Bar Association, says the current judicial selection process allows the Kansas Supreme Court to maintain its independence from politics ("Judicial selection process criticized," Journal-World," Dec. 1). But nine of the last 11 people appointed to that court belonged to the same political party as the governor who appointed them. This is a highly partisan outcome from a system advertised as "non-partisan." Moreover, governors consistently appoint only members of their party to the Supreme Court Nominating Commission.

What makes the Kansas Supreme Court selection process unusual is not that it's political, but that it gives so much political power to the bar (the state's lawyers). Kansas is the only state that gives its bar majority control over the commission that nominates Supreme Court justices. It's no surprise that members of the Kansas bar are happy with the current system because it gives them more power than the bar has in any of the other 49 states and allows them to exercise that power in secret, without any accountability to the public.

I recently published a paper (available at www.fed-soc.org/kansaspaper) that researched how all 50 states select their supreme court justices. Based on this research, I recommend that Kansas move toward the mainstream of states by reducing the power of its bar and increasing the openness and accountability of the process for selecting Kansas Supreme Court justices.

While some states have individual quirks, three basic methods prevail around the country: commissions, elections and senate confirmation. The commission system is the most elitist system because it tends to concentrate power in the bar, a narrow, elite segment of society, (although no state gives the bar quite as much power as Kansas). The other extreme - electing judges - is the most populist method of selecting a supreme court. It risks turning judges into politicians and thus weakening the rule of law. In between these extremes is the more moderate approach of having the governor's nominee win senate confirmation before joining the court.

Our nation's founders adopted this approach in the U.S. Constitution, and today more than a dozen states also select their supreme courts with confirmation by the state senate or similar body. While some claim that senate confirmation in Kansas would be a political "circus," experience in the states that use it contradicts this claim. Experience in these states suggests that senate confirmation of judicial nominees works well and avoids both the extreme of elitist, bar-controlled courts and the extreme of populist courts swaying with the prevailing winds rather than standing firm for the rule of law. In short, senate confirmation of Kansas Supreme Court justices is a worthwhile reform.

- Stephen J. Ware is a professor in the Kansas University School of Law.

Discussion

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8 December 2007
at 3:22 a.m.

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perkins (Anonymous) says…

Those not privy to stories told by persons in the courtroom miss a rich collection of anecdotes about a certain Supreme falling asleep (my favorite involves a fellow Justice trying to nudge this Supreme awake with a kick but missing and falling over). Also one squirms at the lack of judicial ethics demonstrated by another Justice in the school funding case.

I suppose it is the school funding case that is causing this idea of Senate confirmation to be batted around. Yeah, I was surprised at that decision too.
8 December 2007
at 5:23 a.m.

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fetch (Anonymous) says…

This Federalist Society idiot needs to crawl back into his tenure protected office and do something more productive.

The Kansas system has not only served the state well, but has been specifically identified in a number of states of a system which other states should move TO.

I would not be surprised if there were not some Koch related funding supporting this dude. Koch used to drop some money in for a position or two in law and business.
8 December 2007
at 12:37 p.m.

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Valkyrie_of_Reason (Kathy Getto) says…

fetch - I didn't think about the Koch influence, but I bet you are correct in your thinking.

spywell (Anonymous) says:

There are Judges on the bench that have been and are a disgrace and are so politically motivated ……

____________________________________________

Clarence Thomas comes to mind, among many.
8 December 2007
at 4:54 p.m.

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truthhurts (Anonymous) says…

Some of you are missing the point. Ware is advocating for increased transparency. The reality is there is no way to keep politics out of the equation. Would you rather have recourse through the electoral process or leave the decision to a bunch of legal cronies?

If you are serious about removing politics from this process I would suggest you stop voting for Republicans and Democrats (as if there was a difference). The vast majority have shown contempt for the rule of law and judicial restraint.
8 December 2007
at 5:17 p.m.

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Valkyrie_of_Reason (Kathy Getto) says…

“The vast majority have shown contempt for the rule of law and judicial restraint.”

Are you talking about judges or political parties? The KBA “cronies”, as you call them, are attorneys - one of the most ethically monitored, controlled professions in this country. Can you tell me one reason the elected “cronies” of the Kansas State Senate would be a better choice?

Attempts to stack appellate courts with ideologically bound candidates contradict the public interest in selecting an independent judiciary and the main reason our state should reject the election of judges.

Merit selection by a commission is the trend in which more states are gravitating.
8 December 2007
at 9:12 p.m.

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c9lewis (Anonymous) says…

The Perfesser is not happy with the prominence the Bar has over this process? But what makes any particular lawyer (or law professor) favor one party over another? His argument that the current system tends, by its design, to favor party politics is less than persuasive. I myself am particularly happy, I must say, that a law school teacher isn't happy with this system. I haven't been particularly impressed with the performance of any of his ilk in public service, to put it plainly. Practicing members of the Bar are at least out and among the people to be governed. I feel that adding a layer of elected officials to the appointment process adds more politics to the system, and by definition! Just watch the US Supreme Court appointment process on C-Span, whenever there is a president of a different party than that of the Senate majority, and you can get an idea of where this Prefesser's idea could be headed.