Archive for Thursday, November 29, 2012

Opinion: State’s judge selection undemocratic

November 29, 2012


In a democracy like ours, should lawmakers be selected democratically? Not according to the Journal-World (“Court, politics,” Nov. 23), which wants some of our state’s most important lawmakers selected in a deeply undemocratic process that makes the votes of some residents count far more than the votes of others.

The lawmakers in question are our state’s appellate court judges.

Judges are lawmakers? Yes. Judges have routinely made law throughout our country’s history and even earlier, going back to England. This judge-made law, called the “common law,” has generally worked well and continues today to govern thousands of cases including those involving contracts, property rights and bodily injuries.

Common law rules differ from state to state. States with more liberal judges tend to have more liberal common law, while states with more conservative judges tend to have more conservative common law. The political leanings of appellate judges, rather than trial judges, are especially important because appellate judges have much more power over the direction of the law.

In short, the appellate judges of Kansas, like those of other states, are tremendously important lawmakers. What is unusual about the lawmaking judges of Kansas is how they are selected. None of the other 49 states uses the system Kansas uses to pick its two appellate courts. And for good reason, because the Kansas system is a shockingly undemocratic way to select lawmakers.

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. The current system elevates one small group and treats everyone else like second-class citizens.

Kansas lawyers tend to be fine people but they’re not superheroes. They don’t deserve more power than lawyers have in any of the other 49 states. In a democracy, a lawyer’s vote should not be worth more than any other resident’s vote.

So the problem is not that Kansas has a nominating commission but how that commission is selected. As Washburn law professor Jeffrey Jackson wrote, democratic legitimacy “would appear to favor a reduction in the influence of the state bar and its members over the nominating commission because they do not fit within the democratic process. Rather, the more desirable system from a legitimacy standpoint would have a greater number of the commission’s members selected through means more consistent with the concept of representative government.”

Bar groups in Kansas claim that this violation of our democratic principles is the only way to get competent judges. But the bar provides no evidence that judges selected in lawyer-favoring systems are better than judges selected in the more open and democratic appointment systems used by a dozen other states. Kansas should follow those states’ lead so that our state’s courts can have democratic legitimacy as well as professional competence.

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


lawslady 5 years, 1 month ago

With all due respect, do we really want professional politicians deciding court cases? Individuals who run for office must often concern themselves more with fund raising and pleasing the most (powerful) people. Cannot see how that leads to an impartial, objective or competent judiciary. Individuals best suited to the bench should be the most qualified, not the best politicians. I am for any system that promotes that outcome.

DoUntoOthers 5 years, 1 month ago

I doubt that Professor Ware would want his students voting on whether to retain him.

Paul R Getto 5 years, 1 month ago

BS. Leave the selection process alone. If Muscular Sam can corrupt this too. The legal system will devolve rapidly.

bd 5 years, 1 month ago

This is from a law professor who was in practice for only 2 years(91-93) and the rest as a professor??? Love these self proclaimed experts that have hardly any real law experience, just a bunch of education!!!!!

just_another_bozo_on_this_bus 5 years, 1 month ago

What Ware doesn't say is that the process he wants wouldn't be any more democratic than what we currently have-- it'd merely move the selection process from a panel of lawyers to one of the Koch Bros' numerous PACS and thinktanks.

jhawkinsf 5 years, 1 month ago

You must have a very low opinion of the voters of Kansas.

Cait McKnelly 5 years, 1 month ago

Don't know about him, but I sure do, jayhawkinsf. Unless you're saying the teabilly vote isn't coming from actual KS residents but are "massaged numbers".

jhawkinsf 5 years, 1 month ago

Whether one is a right wing conservative or a left wing progressive, I respect the ability of each person to have reached their own perspectives without resorting to blaming some boogeyman or PAC. Strange as it might be, people of good will can and do see the very same things and then come to opposite conclusions.

jafs 5 years, 1 month ago


But there are also a lot of uneducated, uninformed people in this country.

jhawkinsf 5 years, 1 month ago

Sure are. That said, it's somewhat arrogant to suggest that those who agree with you don't fall into that uneducated and uninformed group while those who disagree with you are uneducated and/or uninformed.

jafs 5 years, 1 month ago

Sure is. It's a good thing I didn't say that then :-)

jafs 5 years, 1 month ago

I don't know for sure.

They're certainly saying that there are a bunch of uneducated and uninformed voters who have differing views from their own.

That doesn't mean they think all those who disagree are in that category - we'd have to ask them.

Orwell 5 years, 1 month ago

Stuff and nonsense.

As we usually hear from the right, judges should interpret the laws, not make them. Professionalism and nonpartisan selection will continue to produce prudent interpretation, while political appointment or direct election significantly increases the risk of judicial extremism or outright corruption.

The writer fails to show – or even directly claim – that the current Kansas system has produced more liberal judges or a discernibly liberal body of common law. The attorneys on the nominating commission focus on candidates' professionalism and fitness, not on their political philosophy or connections. It displays a lack of familiarity with Kansas reality to suggest Kansas attorneys as a whole lean particularly in either political or philosophical direction Put more simply, "It ain't broke."

The claimed need for "democratic legitimacy" is already well satisfied by the voters' regular opportunity to choose whether to retain judges selected through the current process. The rarity of judges being voted out is further evidence of the soundness of this process.

If Professor Ware's knickers are in such a twist over the specific composition of the nominating commission, the shift of a single member from attorney-selected to appointed would bring Kansas squarely in line with many other states that share our distrust of cronyism and big money in the judicial selection process. If his real aim is to do away with a nonpartisan merit selection process he would have us trade the baby for the bathwater.

Truth be told, the sustained argument for replacing the current successful process is politically motivated. Those who favor partisan appointment or direct election seek to give more control to the powerful interests that can pour the most money into the process. By contrast, the professionalism produced by the existing process serves us all by providing a judicial restraint on raw political power.

In_God_we_trust 5 years, 1 month ago

They must only teach democracy, and not a Republic at KU.

Ware 5 years, 1 month ago

This is Stephen Ware. I understand that some people use anonymous comments just to blow off steam, while I appreciate the input of those who make careful arguments and ask thoughtful questions.

Like lawslady and overplayedhistory, I have concerns about judicial elections. But electing judges and appointing them in a way that violates democratic equality are not the only options. A dozen states appoint (not elect) their supreme courts in systems significantly more open and democratic than the Kansas system. This is the model advocated in the last paragraph of my column above and more thoroughly here:

“Orwell” largely copies the talking points used by the Bar's leaders to defend their privileged role in selecting these important lawmakers. Note that Orwell can’t and doesn’t deny that appellate judges are very important lawmakers or that a Kansas lawyer has far more power than a non-lawyer in their selection. Orwell argues that this violation of democratic equality in the initial selection of judges is okay because sitting judges in Kansas are later subject to “elections” in which they face no opponents. A response to this argument is at pp.421-24 of the article linked above.

ebyrdstarr 5 years, 1 month ago

Babboy, he's not advocating direct elections of judges at all. He's saying the nominating process we have now is fine except for the way we choose who sits on the nominating commission. He's advocating some form of democratic election process for the people who interview judicial candidates and select three of those candidates for the governor to choose from.

Orwell 5 years, 1 month ago

That's not clear at all. Prof. Ware's intent is to cast aspersions on the current process; he's less forthright about the specifics of an alternative. It's clear the extreme conservatives want to give outright appointment power to the governor, and Ware's attacks serve to undermine an effective status quo, opening the door for the more radical alternative.

adastraperapathy 5 years, 1 month ago

Your comment here is good to read.

But you must know what the Governor tried to push last session--replacing the appellate nomination commission with a sham Senate confirmation process.

If you are a good and true advocate for the judiciary, I hope you are doing everything you can to stop such a system.

The potential for gridlock and special interest interference in a Senate confirmation process are boundless.

Orwell 5 years, 1 month ago

That's a pretty weak argument, Professor. Simplistic categorization of specific relevant arguments (" talking points used by the Bar's leaders to defend their privileged role") displays an inability or unwillingness to address those points on the merits.

In fact judges properly have little if any "lawmaking" authority. If the legislature disagrees with judicial interpretation of a statute the legislature is free to act, clarifying the statute and effectively overriding the court's interpretation. There are few cases in which the appellate courts "create" law, and these few are most often issues of Constitutional scope in which judges conclude existing protections require invalidating governmental restrictions on public/individual rights. Since Constitutional protections stand as a bulwark against governmental excess we need independent judges, not those installed through self-serving executive selection.

Ware 5 years, 1 month ago

Actually, Orwell, there are many cases in which appellate courts make law in non-Constitutional cases; you can see the examples I cite. And as to the constitutional cases in which you concede that appellate judges make law, most everyone, as Harvard Law Prof Jack Goldsmith writes, "recognize[s] that the constitutional opinions of Supreme Court Justices are affected by their political proclivities.” You can see more support for this consensus view at p.12 of We do need independent judges and the current Kansas system is weaker on that front than the "federal model" I advocate. See pp.421-24 of

Orwell 5 years, 1 month ago

Actually, professor, all you've done is to repeat subjective claims. Even if judges "made law" as much as you claim, why on Earth would we want to encourage selection of judges that maximized the probability of big-money corruption and political hackery? I'll be far more receptive to your specifics as soon as you admit your real agenda is to concentrate even more power in the hands of right wing extremists, theocrats and plutocrats.

Liberty275 5 years, 1 month ago

"Judges are lawmakers? Yes."

Judges don't make law, nor should they. We elect legislatures to make laws and governors/presidents to sign or veto them. We don't pay judges to make law, we pay them to oversee court proceedings and rule when a defendant waives the right to a jury trial.

KULawyer1 5 years, 1 month ago

Prof. Ware is absolutely right on this issue. Kansans have one of the most undemocratic judicial appointment procedures in the nation. It's time for some reform. Anyone who values the rule of law, and wants to prevent political parties on both sides of the aisle from corrupting the process should support Ware's arguments.

I'm glad to have been one of Prof Ware's students. He is one of the brightest legal minds in the state, if not the country. I'm glad some one of his caliber is speaking out on this important issue.

adastraperapathy 5 years, 1 month ago

Are conservatives somehow unable to become lawyers?

If there is not some barrier of entry that prevents conservatives from becoming lawyers, I do not see how having lawyers (experts in law) make nomination recommendations--which, let's be clear, is all they do.

Or perhaps Professor Ware prefers the system we have in some Kansas counties, where judges are elected in partisan contests and outside special interest groups get to meddle?

If Professor Ware thinks the nominating commission should be expanded to include more representatives from the legislature, so that those members nominated by the Kansas Bar (currently 5 of 9) do not have as much influence, then he should say so.

Otherwise, all he is doing is giving cover to those in the Governor's administration who want to replace the current non-partisan process with a sham Senate confirmation system.

Newsflash: unlike the US Senate, the Kansas legislature is part-time and has no where near the capacity to effectively vet judicial nominees. Unless we want to pay more to convene the legislature all year (true conservatives would be against such an expansion of government), we need to keep the nominating commission in place.

Add a few more representatives chosen by the legislature. But don't turn the commission over to a bunch of political cranks more interested in pushing an ideological agenda than impartially interpreting and enforcing the law.

Ware 5 years, 1 month ago

adastraperapathy, do you agree that state supreme court justices make law? Or do you think they merely apply law made by others?

Alyosha 5 years, 1 month ago

Mr. Ware, do you assert that there are no circumstances under which a justice (or other kind of judge) must interpret a law in order to come to a ruling? How do you differentiate between interpreting how a particular law applies in a specific fact set and your belief that justices "make" law?

Ware 5 years, 1 month ago

Good question, Alyosha, as that can be a complex topic. My thoughts on it are here Once you see those examples, I hope you'll agree there are plenty of cases in which appellate judges are making law.

Kathy Theis-Getto 5 years, 1 month ago

I found nothing on this complexity in your paper. Found a typo, tho. :-)

jafs 5 years, 1 month ago

If judges are in fact "making law", they're reaching beyond their correct scope, and the problem should be addressed and fixed.

They're supposed to interpret and apply the law, not make it, which is the legislature's job.

Leaving the original problem, and changing the way judges are selected isn't the best approach, in my view.

Ware 5 years, 1 month ago

Jafs, appellate judges sometimes split on the proper interpretation of a statute the legislature has enacted. In such cases, each side may contend that it is deferring to the Legislature, while the other side is substituting the judges' wishes for that of the Legislature.

jafs 5 years, 1 month ago


Their job is to interpret and apply the law, not make it.

If they're making law, that should be fixed, so that they're not doing that.

If laws are subject to differing interpretations, each of which seems valid to intelligent people, then the legislature should clarify those laws so that's not the case.

Either way, the solution isn't to change the way judges are selected.

Ware 5 years, 1 month ago

Jafs, you say that "If laws are subject to differing interpretations, each of which seems valid to intelligent people, then the legislature should clarify those laws so that's not the case." Even if you think the legislature should do this clarifying, the legislature often does not in fact do this clarifying. So appellate judges are inevitably presented with a fair number of cases in which they have significant discretion. And that's just statutory cases. The reality of judicial discretion is even greater in common law and constitutional cases. How would you try to eliminate that? Or do you accept the common law and a broadly-worded Constitution as venerable and valuable parts of our system?

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