Archive for Friday, November 30, 2012

Letter: Process is fine

November 30, 2012


To the editor:

I read with interest the op-ed piece in Thursday’s paper by Professor Ware. Professor Ware argues that the current process for selecting nominees (final appointments are made by the governor) to our state’s appellate courts should be changed. His rationale is that it is “undemocratic.”

Typically those who press for a change in the status quo must convince the public that there is a need for change. Professor Ware makes no argument that the court is ineffective, unjust or incompetent. In fact, Professor Ware cites no specific problem with the court as constituted. The absence of evidence is evidence of its absence. As such it is fair to assume that the process which has served Kansans well for decades continues to do so.

If Professor Ware is concerned about “undemocratic” processes, he might turn his attention to the Electoral College or to the voting process in America where the management of elections is conducted by partisan politicians, where proven abuses and “undemocratic” actions are well documented.

The current selection process has produced a judiciary of high quality. Before we consider suggestions to change that system, there must be a compelling argument that the current process has failed in its goal of selecting honest, credible and effective judges and in turn a good judiciary.


Ware 5 years, 6 months ago

This is Stephen Ware. Patrick Nichols, do you agree that state supreme court justices make law? Or do you think they merely apply law made by others?

WilliamMarbury 5 years, 6 months ago

Prof. Ware, Its me . . . William Marbury. What's your point? Do you agree that "judicial review" existed before even me? Do you still believe in 3 branches of government and the separation of powers doctrine? Do you agree that judicial review is a necessary and inherent function of the judiciary in both our Federal and State constitutional systems of government? Have you read Hamilton's Federalitsts 78 . . . lately? Don't you argree that Hamilton's primary concern was with protecting the judiciary from the influence of our elected leaders? Do you agree that your arguments are more consistent with those made by the Anti-Federalists?

Finally, don't you agree that we need Judges willing to protect us from the majority, not be beholding to them?

Or, in light of Montoy v. State, 279 Kan. 817, are no longer willing to believe in me?

Alyosha 5 years, 6 months ago

Mr. Ware, do you assert that some justices some times "make" law? If so, what are your specific examples?

Ware 5 years, 6 months ago

Thanks for asking, Alyosha. Plenty of examples here Do they persuade you?

Ware 5 years, 6 months ago

observant, after reading this, do you still deny that appellate judges make law?

voevoda 5 years, 6 months ago

There are higher qualifications for the position of judge than being politically acceptable. Judges need to have a high level of knowledge of the law and well-developed sense of balance and fairness. Clearly, the State Legislature doesn't possess these traits itself, so it shouldn't be entrusted with discerning them in others.

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