A bill that would have significantly changed the process for appointing members of the Kansas Court of Appeals was narrowly rejected last week by the Kansas Senate, but other proposals to alter the selection process may be on the agenda before the end of this legislative session.
With all the big issues facing legislators this year, there is no reason for them to spend more time on efforts to change a system that’s working well for the state.
Currently, the governor appoints members of the Court of Appeals, choosing from among up to three nominees forwarded by the state’s nine-member Supreme Court Nominating Commission. (The same process applies for the Kansas Supreme Court, but changing the process for that body would require an amendment to the Kansas Constitution.) Critics of this process focus on the makeup of the nominating commission, and the bill that was rejected Thursday would have eliminated that body’s role and allowed the governor to appoint anyone he or she chose to the Court of Appeals, subject to Senate confirmation.
Four members of the nominating commission are non-attorneys appointed by the governor, one from each of the state’s congressional districts. Four members are attorneys elected by attorneys in each of those districts. The ninth member is an attorney selected by attorneys in a statewide vote. Opponents suggest the Kansas system is out of step with other states, but several other states have systems that are almost identical including nominating commissions with a majority of attorney members. The only difference is that, in some states, a member of the state Supreme Court or someone appointed by the chief justice — always an attorney — fills one seat on the commission.
Proponents of the system rejected in the Senate on Thursday claim that it makes the judicial process more democratic, but it also makes it far more political. Kansans need look no further than the federal judiciary to see the impact of such a system. Appointments to the U.S. Supreme Court have been highly politicized, and dozens of nominations to fill seats on federal appeals and district courts currently are hung up in the confirmation process.
The attorneys who are members of the Kansas Supreme Court Nominating Commission are selected by attorneys representing both political parties. In most cases, they are familiar with attorneys and judges who are seeking seats on the Court of Appeals. The process ensures that qualified candidates are submitted to the governor, who then can apply whatever philosophical or political preferences he or she wants to the final selection.
Without the nominating commission, the governor would be able to appoint anyone to serve on the appeals court. That person might or might not be well-qualified for the job and probably would reflect the philosophical and political leanings of the governor, especially if the governor’s party enjoys a majority in the Kansas Senate, as is now the case.
The Kansas Supreme Court Nominating Commission provides an important political buffer for those who are appointed to the state’s highest courts. It’s a system that has worked well in the state for many years. There’s no reason to change it now.