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.


Ware 5 years, 5 months ago

In fact, it's the bulk of Kansas lawyers who don't want competition. They're a small group with more power than people like them have in any of the other 49 states. And they don't want to open up the system to their fellow citizens.

Ware 5 years, 5 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.

just_another_bozo_on_this_bus 5 years, 5 months ago

In states that elect judges, well-funded special interests play a very significant role in who gets elected, and the rulings by these judges reflect what can only be termed quid pro quo.

How can the selection process be democratized without essentially putting judgeships up for sale to the highest bidders?

Ware 5 years, 5 months ago

Bozo, are you suggesting that in the current Kansas system, well funded special interests do not play a very significant role in who gets selected? Do you count as special interests the Kansas Bar Ass'n, the Kansas Trial Lawyers Association, the Kansas Association of Defense Counsel, Lathrop & Gage, etc.? How can you be sure the current Kansas process does not essentially put judgeships up for sale to the highest bidders? Do you know which members of the nominating commission vote for which applicants and what deals, if any, those commissioners have made with those applicants? Is there more public disclosure of campaign contributions or of lawyers referring business to each other?

unaware 5 years, 5 months ago

The only way Mr. Ware argument holds water is if you believe the Governor of Kansas is not Democratically elected. The current process is a competition among qualified lawyers. Let's be clear the politics of this change, if implemented, you will find that the Appellate Judges will all be from Legal Staff of Koch Industries or hand picked hacks by the Kansas Chamber of Commerce.

It is sad to see a learned professor lie, Mr. Ware fails to state that 2.8 million Kansan's have the right to vote directly to retain or release the Judges from their Service.

In the end, the current process protects Kansan's from legal hacks who never practiced law, who never prosecuted a criminal case, or never filed a motion. It protects Kansan's from the Country Club Lawyer whose rich uncle gave enough money to the right political candidate for governor.

july241983 5 years, 5 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 5 years, 5 months ago

The federal court did not hold that the current Kansas appellate selection system embodies the principle of “one-person, one-vote.” The federal court held that the current Kansas system is constitutional even though it violates the principle of “one-person, one-vote” by making a lawyer’s vote worth more than another citizen’s vote.

To put it another way, federal courts have interpreted the US Constitution to require that some, but not all, elections be conducted in accord with “one-person, one-vote.” So as constitutional case law stands today, states are free to adopt a judicial selection system that violates basic democratic equality (like the status quo in Kansas) or one that respects basic democratic equality (judicial elections or judicial appointments by democratically-elected officials). We can’t count on federal courts to make our state do the right thing; we need to be responsible citizens and do it ourselves.

Retention elections don’t somehow retroactively legitimize an illegitimate system of initially selecting judges. You can read more on that in this free download at pages 421-424.

The “triple play” of the 1950’s is irrelevant as nobody is proposing a return to that system. The choice between the status quo in Kansas and a senate confirmation system (like we have for federal judges and in many other states) is whether you want the check on the governor’s appointments to be the bar or a democratically-elected body. And if you don’t want either of them, you can have judicial elections.

just_another_bozo_on_this_bus 5 years, 5 months ago

Every election in which an incumbent legislator or other elected official is running for re-election is, in essence, a retention election. Are the initial elections of these officials considered illegitimate because they are now seeking re-election, as you are claiming in the case of judicial retention elections?

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