Archive for Sunday, December 16, 2012

Order in the court: Attorneys make concession in fight over judicial selection

December 16, 2012


— With little fanfare, a group in the middle of the fight over state appellate judges has made a big concession.

The Kansas Bar Association's governing board recently approved a resolution that maintains support for the merit selection of judges on the Kansas Supreme Court and Kansas Court of Appeals, but also says it's OK with changing the way members are selected to a judicial nominating committee.

"We don't need control of that," said Lee Smithyman, president of the KBA. "That's a really important change. It absolutely eviscerates the primary criticism of the system," he said.

For two years, Gov. Sam Brownback, a conservative Republican, has sought more control in picking appellate judges, and now he has the Legislature in place that can give him the legislation to do that when the 2013 session starts Jan. 14.

The question is how far will the changes go?

Currently, judges on the Kansas Court of Appeals and justices on the Kansas Supreme Court are picked by the governor from a list of nominees provided by the Kansas Supreme Court Nominating Commission. After a judge or justice is appointed, he or she must stand for retention elections.

The Nominating Commission takes applications, interviews applicants, does numerous checks and forwards three names to the governor.

But conservatives have maintained that the Nominating Commission is dominated by lawyers who produce more liberal nominees.

And much of the criticism has focused on the make-up of the Nominating Commission.

It comprises nine members, five of which are elected by the approximately 10,000 members of the Kansas Bar Association. The governor appoints the remaining four members.

Stephen Ware, a professor at the Kansas University School of Law, has been a longtime critic of this setup, arguing that Kansas gives too much power to attorneys in the process of selecting appellate judges.

In an opinion piece he wrote last month, Ware said having a majority of the Nominating Commission picked in elections of members of the state bar "violates basic equality among citizens, the principle of one-person, one-vote."

He added, "So the problem is not that Kansas has a nominating commission but how that commission is selected."

Smithyman, president of the state bar, says the Legislature can change the make-up of the Nominating Commission if that's what legislators want to do.

"However they want to do it," he said. "Obviously, we hope attorneys would have some role, but if everyone says we are so dreadful, then so be it," he said.

Smithyman said he believes the most important feature of the selection process is that it remain based on merit.

"The last thing we want is judges who have to run for election. If politics enters the judiciary, it's like an infection," he said. "We vote for the governor and the Legislature, but we need a non-political judiciary to enforce and interpret and to ensure the minority's rights are respected by the majority," he said.

When told what Smithyman said, Ware said that position represents movement by the state bar toward compromise.

But Ware said he has other problems with the current system, namely that the nominating commission makes its decision on who to nominate without a public vote.

To change the selection process for judges on the Kansas Court of Appeals would require a majority vote in the Legislature and the governor's signature. A bill that would have let the governor nominate and Senate confirm judges on the appeals court has been approved in the House, but failed in the Senate last session. The incoming Senate, now that eight moderates have been replaced by conservatives, is more likely to approve such a bill.

To change the method of selecting Kansas Supreme Court justices would require a constitutional amendment which needs a two-thirds majority in the House and Senate before being put up for a vote of the public.

The following resolution was adopted recently by the Kansas Bar Association Board of Governors:

RESOLVED, that the Kansas Bar Association supports the merit selection system for appellate judges and justices, independent of how merit panel members are selected. The present application, interview, questioning and selection process provides the best available information to identify and select the most qualified appellate judges and justices, independent of political considerations.


JackMcKee 5 years, 3 months ago

Well the takeover of state government by the wacko right is complete.

volunteer 5 years, 3 months ago

Why change a process that is not broken? Stephen Ware needs to get out of the ivory tower and watch some trials in Douglas County and report back to us how "liberal" he finds the district court judges. (One atrocious case four or five years ago notwithstanding, and that got corrected on appeal).

Mike1949 5 years, 3 months ago

Why change an unbroken system? Because our Republican Governor wants to guarantee a judicial system that will favor the right and also one that he and future Republicans can control to slant future decisions that has nothing to do with justice, but to enforce political injustice and discrimination! People, Kansas is becoming a joke if they are not already!

Ware 5 years, 3 months ago

Volunteer could engage in reasoned debate about our state's appellate selection process by responding to these points

Orwell 5 years, 3 months ago

Ware could engage in reasoned debate about the prospect of political cronyism and big money becoming the dominant forces in judicial selection.

Ware 5 years, 3 months ago

Orwell, how do you know that cronyism and money are not already big forces in our state's appellate selection process?

Mike1949 5 years, 3 months ago

I personally think that the judicial system should step in and STOP this insane take over of our rights! Soon Kansans will have no rights at all!

Liberty275 5 years, 3 months ago

Much gnashing of teeth and many squeal-squeal noises are in today's forecast.

Ware 5 years, 3 months ago

It's broken because it selects very important lawmakers in an undemocratic and secretive way.

jafs 5 years, 3 months ago

Again, if judges are "lawmakers", then that's a big problem, and one that should be solved.

Changing the way they're selected doesn't fix that.

Ware 5 years, 3 months ago

Jafs, do you prefer the Anglo-American common law system under which judges have openly made law for centuries or the Continental European Civil Law system which seems to reduce judicial discretion somewhat?

jafs 5 years, 3 months ago

Judges aren't supposed to "make law" in our system, as I understand it.

That's reserved for legislatures.

Judges are supposed to interpret and apply laws made by them.

Do you disagree?

WilliamMarbury 5 years, 3 months ago

Speaking of secrets . . . Prof. Ware will you please acknowledge your association with the Institute of Humane Studies, and the fact that you are one of the dozens of scholars Kock was speaking of when soliciting 100K to "Activate dozen of scholars to weigh in on today's critical policy issues with research and commentary."

OBTW, given the extent of your efforts here, Florida, Indiana, and elsewhere, you deserve a raise.

Centerville 5 years, 3 months ago

Here's a little story that might explain why five of the seven (or seven of the nine) 'justices' had to recuse themselves in a recent case. Someone asked then Gov Graves why he only appointed liberal Democrats. He replied, "those are the only names they send me." Duh.

Thomas Bryce Jr. 5 years, 3 months ago

Recent Conservative Re-write of our Pledge of Allegiance:"I Pledge Allegiance to the PAC of Grover Norquist and Corporate America, and to the Republicans for which it stands. One Nation under OUR God, Indisputable, with Liberty and Justice for those who can afford it." Welcome to the NEW America!

Liberty275 5 years, 3 months ago

That's cute.

I've noticed the left attacks and applauds people while the right does the same with ideas. There are exceptions like Reagan and and the three important democrats they hear about in the email, but the left always sees a human face on perceived problems. Norquist is a perfect example. Here you, DoubtingThomas, are talking about him in a forum full of conservatives that barely knows of him, surrounded by 100 million conservatives that don't know he exists.

Both sides personally vilify each other too much, but from here it looks like the left is a lot worse. I thought this was a good example.

Thomas Bryce Jr. 5 years, 3 months ago

Grover Norquist says he speaks for all Conservatives. It is sad to think 100 million conservatives don't know he exists when he controls so much of what goes on in their"best interest". I agree both sides vilify the other way too much. In this case, I am poking fun at conservatives. Democrats deserve it too.I will have a Liberal Pledge of Allegiance to write down once it is finished rolling around in the back of my mind and sounds plausible. You have many good points. Keep it up.

Hardhawk1 5 years, 3 months ago

This is a reasonable decision by the KBA. It shows that they are willing to address the concerns about the current system that have been raised and are willing to support considered changes to the process. Reasonable minds can and do differ on this subject. Lets hope the legislature will take a reasoned approach and look at tweaking the current system and preserve merit selection. Other states that elect appellate judges and justices have races that cost millions of dollars per seat. In Kansas a statewide race will involve multiple six figures raised and spent by each candidate at a minimum if the races are contested. Where will that kind of money come from? Big business, insurance companies, large law firms, and the trial lawyers. Do we really want "justice to the highest bidder"? Several other legal groups in Kansas have adopted similar resolutions as the KBA's. it shows that the state's leading legal organizations are willing to work with the state's political leaders to effectuate responsible changes to the current system. Lets hope that attitude of working together will be embraced and that meaningful change can occur while preserving the independent nature of our appellate courts.

Ware 5 years, 3 months ago

Hardhawk1 are you suggesting that in the current Kansas system of bar-selected commissioners deciding on nominees in secret, well funded special interests do not play a very significant role in who gets selected to appellate judgeships? How can you be sure the current Kansas process has less risk of "justice to the highest bidder" than alternative systems? Do you know which members of the 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?

Hardhawk1 5 years, 3 months ago

Professor Ware: The Governor appoints 4 of the 9 commission members in our current system. So, I would expect that the Governor knows exactly who voted for each nominee. Each of the lawyer commission members is elected at an election that is open to all practicing attorneys in each Congressional distrct and the chair is elected by all licensed attorneys in the state. I am very familiar with the current process and have no reason to suspect that any special interest groups control the outcome of those elections. I have seen letters of support for particular commission candidates signed by other attorneys sent out during the election process, but looking at the names on those letters indicates that it is merely some freinds of a particular candidate supporting him or her. I have never seen any special interest group attempt to influence the attorney election process. So, based on my experience over a number of decades with the process, I would say that there is not any evidence of any well funded special interest groups being involved. That being said, I certainly understand and appreciate your concern about even the commission's discussions and voting being transparent. Seems like a reasonable request to me, provided that any personal financial data or other such information could be discussed in a closed session to protect that information of the applicants. I feel that there is FAR more risk of special interest influence in an election process than a merit process. Do you favor elections over a more democratically selected commission with a totally open process? How would you feel about a modified Federal Model where there could be citizen and attorney involvement at public hearings after someone was nominated by the Governor, before the nominee goes before the full Senate? There are a lot of options out there that would fully address your concerns that would be far less devastating to an independent judiciary than partisan elections for our appellate judges and justices. Now that the KBA has moved a mile in trying to address your concerns, perhaps you should work with them, the legislature, and the Governor to craft a new merit selection system that will address your concerns and still provide for the merit selection of our appellate courts. I am certain that the KBA would welcome your ideas in moving this issue forward. Hopefully, so would the legislature and the Governor.

Ware 5 years, 3 months ago

No, the KBA has not “moved a mile.” That is a gross overstatement. The KBA has not suggested or endorsed any proposal for reform. A variety of reform bills have been introduced in the legislature over the last several years and the KBA has consistently opposed them all without even once suggesting a reform that it would support. Similarly, the state’s appellate judges (in their legislative testimony and newspaper columns) have stubbornly defended the status quo, rather take the constructive approach of advocating a good alternative.

Hadley_says 5 years, 3 months ago

Oh, the irony.

You have to remember that Professor Ware is an officer of the Douglas County Republican Party. The top officials elected last month comprise individuals closely associated with the Koch funded political action group AFP, (Americans For Prosperity.) In essence, the Douglas County R Party is now controlled by the Kochs. (Mr Ware was also an officer with the previous group).

If Mr. Ware is sincerely concerned about transparency and the influences of big money on judicial selection, he should reject the Koch's and AFP's long expressed campaign to directly elect judges. After all, AFP and the Kochs, are both national paragons of non-transparency and amongst the biggest national practitioners of using secret "big money" in their political objectives.

Ware 5 years, 3 months ago

Hadley, I’ve long said I prefer senate confirmation of judicial nominees (like we have in the U.S. Constitution for federal judges) to both judicial elections and nominating commissions. See

Which do you prefer?

situveux1 5 years, 3 months ago

Too funny. They see the writing on the wall and now ask, pretty please, can we keep some power? lol. Too little, too late.

gccs14r 5 years, 3 months ago

This is not what we need. The fewer things Brownback can touch, the better. He's already screwed up our finances. Now the court system will be jacked up.

William Weissbeck 5 years, 3 months ago

With all due respect for Prof. Ware, he must be an outcast at the law school. The law professors that I've known in my years generally wanted politics out of the courts as much as possible. They hated hack appointees and judicial incompetents. They dissed many state court judges for having little of the intellectual capacity of the federal judges. Granted, some of this was "intellectual" snobbery, but contending that lawyers nominating, interviewing and recommending judges for appointment produces less than the best possible appointments is quite a stretch. All of the alternatives may on the surface be more democratic, but that isn't going to get us better, legally well informed, impartial, generally unprejudiced judges. Look at our other elected officials - a circus of some of the least informed, most narrow minded, and prejudiced of our general population.

WilliamMarbury 5 years, 3 months ago

Don't you know? The Institute for Humane Studies "help place" Professor Ware at KU and they "activated" him. Crazy stuff this institute does. It indocrinates, places, and then activates. Sounds like something modeled by Osama.

Ware 5 years, 3 months ago

Do you have any evidence that judges selected by a commission with bar-picked members (like Kansas has) are better than judges selected under a senate confirmation system? You refer to the "intellectual capacity of the federal judges" and they are selected in a senate confirmation system. Similarly, many states use senate confirmation. What's your evidence that those states sacrifice quality to get democratic legitimacy?

WilliamMarbury 5 years, 3 months ago

Hey Prof, if it’s you, glad to see you made it back. I very much wish to debate you. But first things first which in my book is disclosure. So before continuing the debate how about some FULL DISCLOSURE? We wouldn’t want people out there thinking your interest in this matter is entirely academic would we?

You are in fact associated with the IHS and were "activated" by them “to weigh in on today’s critical policy issues with research and commentary,” true? And yes, I am a Kansas lawyer. I’m also a big believer in free markets, and probably a Libertarian too, at least in principle.

William Weissbeck 5 years, 3 months ago

Unfortunately, the federal bench I refer to was that which existed while Reagan was in his first term. Hard to believe that Posner goes back that far. Since then however, as with legislative reapportionment, the goal is to nominate and appoint the youngest, most partisan judge that you can sneek by the process.

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