Archive for Saturday, December 15, 2012

Opinion: Chief justice defends selection system

December 15, 2012


As a former Marine Corps combat engineer, I appreciate Army Gen. George S. Patton Jr. Just before his troops stormed Normandy beaches to help liberate Europe, he gave them a rousing speech. The general reminded them that they had all “admired the champion marble player, the fastest runner … and the All-American football players.” General Patton’s inspirational point? “Americans love a winner.”

What Patton said about Americans in 1944 is still true about Kansans in 2012. We love winners. Winners are produced by competition. And rugged competition has produced all of our state’s appellate jurists — Court of Appeals judges and Supreme Court justices — since 1958.

I know this, because I started competing to become one in 1995. I completed my lengthy application, attached samples of my legal writings and listed judges and fellow lawyers familiar with my work. I also submitted to an investigation and an interview by the nine Kansans on the state Judicial Nominating Commission. My 29 competitors did the same. After this thorough screening process, the commission selected three people from whom the governor would choose Kansas’ next Court of Appeals judge. My qualifications were not good enough; I was not selected by the commission.

Another opportunity arose a few months later. This time I competed against 27 other applicants, and my result was the same as before.

Because I was determined to earn a position as an appellate jurist, I tried to improve my competitiveness. To hone my writing and analytical skills, I researched and wrote several legal articles for publication — and volunteered to author appellate briefs for other lawyers. To sharpen my understanding of the law’s application to the real world, I sought more cases to try to Kansas juries. To achieve a broader perspective of the law, I expanded my law practice to include additional legal fields.

In my third competition, in 2000 I was selected from 22 applicants as one of the three people submitted to the governor. But he chose one of my two remaining competitors. So I worked harder to improve my legal abilities and understanding of the law before the next vacancy.

In 2002, I competed against 17 other applicants wanting to become a justice on the Supreme Court. My name was again one of three sent to the governor. And this time I was chosen — by the same governor who had chosen someone else two years earlier. In my view, I was finally successful because I had steadily improved my qualifications during the previous seven years.

But now, new ways of choosing Kansas appellate jurists are being proposed to replace our 50-year-old competitive system of merit selection.

When comparing systems, several fundamental features of our present system must be considered. First is the democratic feature. Our system grants the equal opportunity — to be chosen an appellate jurist — to each Kansas lawyer and trial judge with at least 10 years’ experience. Nearly 11,000 individual notices are mailed for every vacancy. And to have a chance of achieving such an important position, the person only needs to apply.

Second, and more important to all Kansans, is the quality feature. As demonstrated by my experience, equal opportunity to all means that more than one person will apply. And that obviously means competition — one where politics and its money fortunately play no role. But without such a competition that compares side-by-side the qualification of numerous applicants, no new system can truly claim it produces the best appellate jurists for Kansas.

Even General Patton’s “champion marble player” had to compete against all comers on a level field to earn the title. As a fourth-generation Kansan, I say we should require no less for our state’s appellate jurists. That is why I support our merit selection system.

— Lawton R. Nuss is a Salina native. He has served on the Kansas Supreme Court since 2002 and as chief justice since 2010.


july241983 1 year, 4 months ago

Professor Ware,

Could you explain why retention elections do not satisfy your "one person one vote" argument? You claim that the current system violates equal protection of the law, but the federal courts that have considered the issue have held otherwise. If Kansans truly wanted to oust a judge, they have equal voting power to do so. But they have generally been happy with the judges selected based on merit. Your argument in the past has been "no judge has ever lost their seat in a retention election." But that shouldn't matter. When was the last time a Democrat won the presidential elector votes in Kansas? That doesn't mean the elections were unfair or lacking in legitimacy.

You also claim that there are "back room deals controlled by the bar." Your solution is to put more power in the hands of the governor. But the governor gets to appoint 4 of the 9 members of the judicial nominating commission and then gets to pick one of three finalists picked by the commission. That seems to be a whole lot of influence in the selection process. If there really were "back room deals" with preselected finalists, don't you think any one of the four gubernatorial appointments on the commission would report that back to the governor?

Maybe you would prefer the system Kansas used to have, where there were judicial elections and any temporary positions were made by appointment? But as you know, Kansans became outraged at that system when Governor Fred Hall, who was defeated in the primary election, pulled the "Kansas triple play" and got himself appointed as Chief Justice of the Supreme Court. In the move, the Chief Justice, who was seriously ill, sent his resignation letter to Governor Hall. Hall then immediately gave the governor position to his lieutenant - who had already agreed to appoint Hall as Chief Justice. The lieutenant became governor for a period of 11 days, and his only official act was to appoint outgoing Governor Hall to the Chief Justice position.

Despite this prior history, you seem to support appointment by the governor with the additional "check" of Senate confirmation. Of course, in recent years, the governor has been financially injecting himself into Senate campaigns, so there is that. But more importantly, you claim that senate confirmation makes the system more open to the public - because the public can vote against the senators on Election Day to punish them for bad votes on judicial candidates. But the voters can actually vote against the judges and justices on Election Day. This seems to be a big whole in your argument that the current judicial system in Kansas takes power from the people. Each judge or justice can flat out be kicked out of office by the public. That is a whole lot of power.


Ware 1 year, 4 months ago

This column does not address, let alone refute, any of the main arguments for reforming the current system: 1) Appellate judges are important lawmakers so they should be selected in a process with democratic legitimacy. 2) At the center of the Kansas system is the Supreme Court Nominating Commission; most of the members of this commission are picked in elections open to only 10,000 people, the members of the state bar. The remaining 2.8 million people in Kansas have no vote in these elections. This violates basic equality among citizens, the principle of one-person, one-vote. 3) Kansas is the only state that allows the bar to select a majority of its commission. 4) Kansas not only concentrates tremendous power in a small group but allows them to exercise this power behind closed doors in a secret vote ("backroom politics" controlled by the bar). 5) There is no evidence that judges selected under this undemocratic, insular and secretive system are better at their jobs than judges selected under more open and democratic systems.


Linda and Bill Houghton 1 year, 4 months ago

Sam and his followers don't like competition.


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