It would be relatively simple to fix the primary problem that Gov. Sam Brownback and other critics have cited with the state’s process for selecting members of the Kansas Court of Appeals and Kansas Supreme Court. Unfortunately, rather than pursuing a simple fix, the governor and some legislators are advocating throwing out a system that has worked well in Kansas for decades.
Kansas appellate judges currently are appointed by the governor from nominees forwarded by the state’s Judicial Nominating Commission. That commission includes five attorneys chosen by the Kansas Bar and four non-attorneys appointed by the governor. Critics of this system see it as being unduly dominated by attorneys: a group that the governor apparently was referring to Tuesday night when he spoke of allowing “a special interest group to control the process of choosing who will be our appellate judges.”
Twenty-two states use nominating commissions similar to the one in Kansas but with variations in how commission members are selected. There’s no evidence that the current system isn’t working, but if Kansans are concerned that a majority of state commission members are attorneys chosen by other attorneys, it would be relatively easy to adjust the membership of the commission by adding members or changing the appointment requirements.
Instead, Brownback is proposing two other alternatives: having Kansans elect their appellate judges or moving to the “federal model” in which the governor would make appointments that would be ratified by the Kansas Senate.
Twenty-two states elect their Supreme Court in either partisan or non-partisan elections, according to the New York University School of Law’s Brennan Center for Justice, which has studied the impact of elective politics on the judiciary. A 2010 study noted the “money explosion” in supreme court campaigns. Judicial campaign fundraising more than doubled between 2000 and 2009; during that decade $206.9 million was poured into state supreme court campaigns. Part of that trend, it noted, included efforts by “super spending” organizations and “secretive state and national campaigns to tilt” the elections to meet their political agendas. It also increased the incidence of nasty television ads and public concern over the impartiality of their courts.
That hardly seems like a system that would address Brownback’s concern over the influence of “special interest groups.”
Brownback also contended that the current Kansas system “fails the democracy test.” Actually, the system was instituted in a very democratic general election in 1958. Up to that point, judges were elected in Kansas, and the governor had the right to appoint judges when a vacancy occurred between elections. In 1956, in a maneuver that has been dubbed the “triple play,” Gov. Fred Hall, who had been defeated in his primary election, took advantage of that system. After the chief justice resigned for health reasons, Hall resigned the governorship just before the end of his term. That allowed the new governor (his former lieutenant governor) to appoint Hall to the chief justice position. It’s easy to see, after that episode, why Kansans would choose a constitutional amendment to create a nominating commission over having their governor appoint judges, which is Brownback’s other preferred system. Only four states use a system in which the governor appoints appellate judges.
Both selection systems proposed by the governor would increase the influence of politics over a judiciary that should be as far removed from politics as possible. If Kansans are concerned that there are too many attorney-elected attorneys on the Judicial Nominating Commission, that can be changed, but there’s no reason to think that either of the more drastic alternatives currently on the table will produce a system that is either more democratic or less influenced by “special interest” groups than a nominating commission system.