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Opinion

Opinion

Editorial: Court maneuver

There’s no reason to throw out a judicial selection system that has been working in Kansas for more than 50 years.

January 20, 2013

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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.

Comments

truthhurts 1 year, 7 months ago

"Twenty-two states use nominating commissions similar to the one in Kansas but with variations in how commission members are selected. "

I believe Kansas is the only state where the bar comprises the majority of the nominating commission. Even if the makeup of the commission were adjusted it would still be appointed by the bar (no accountability to voters) or the Governor (limited accountability). The process is political now - it's just much more secretive than the federal model. I'm sorry if I am not naive enough to believe that "merit" is the only criteria for selection.

This change is far from perfect, but it is an improvement. There would be much more light on the process, and all Senators would be accountable for their support or lack of support for a nominee. It is also important to note that judges will still be subject to retention by all voters.

I suspect much of the resistance to this is based on the fact that Brownback supports it. This is a policy change and will not just impact the current Governor and Legislative body. I did not vote for Brownback, but am not so blinded by partisanship to oppose every initiative that is proposed.

PWilbur

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just_another_bozo_on_this_bus 1 year, 7 months ago

"I suspect much of the resistance to this is based on the fact that Brownback supports it. "

No, the resistance comes from observing what happens in states that have the system that Brownback supports-- the complete politicization of judgeship selections, the injection of big money into the retention campaigns, behind-the-scenes horse trading among Senators and the Governor's office that will be the real selection process, and when added all up, it puts these positions up for sale to the highest bidders.

That's not to say the current process can't be improved, but Brownback's proposal is no improvement. Quite the opposite.

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Ware 1 year, 7 months ago

  1. In which senate-confirmation state do you have evidence of horse trading judgeships?
  2. In which senate-confirmation state do you have evidence that the justices are less capable or ethical than in Kansas?
  3. What is your evidence that the current Kansas system of bar politics is any less political than a system of democratic politics, like senate confirmation?
  4. How would you improve the current undemocratic, extreme and secretive process Kansas now has?
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just_another_bozo_on_this_bus 1 year, 7 months ago

  1. At the federal level, the process is extremely politicized and downright dysfunctional. Getting nominated and confirmed based on the quality of jurisprudence is at best secondary. Why would it be any different at the state level? And if judges can be selected in a purely political process, it increases the likelihood retention elections will become targets for well-funded special interests.

  2. See # 1

  3. The main evidence is that I don't see any overt evidence of politicization in judicial rulings. But that's exactly what's behind this push by Brownback, isn't it?

  4. The makeup of the selection committed could be tweaked, perhaps increased slightly in size to allow wider representation, and the votes could be made public.

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Ware 1 year, 7 months ago

Good, Bozo, that you want the vote public. Please encourage to the Kansas Bar Ass'n to stop insisting on the secrecy of the vote. And how do you propose to "tweak" the commission's selection? The devil may be in those details so until you provide those details you have not satisfied the duty of those who criticize to offer something better.

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just_another_bozo_on_this_bus 1 year, 7 months ago

If you're endorsing Brownback's plan, you haven't offered anything better.

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Ware 1 year, 7 months ago

The JW editorial omits three crucial facts. The current Kansas Supreme Court selection process is (1) undemocratic, (2) extreme, and (3) secretive. 1. It selects high government officials with tremendous influence over the direction and content of our state's law (Supreme Court justices) in a process that gives about 10,000 people more power than everyone else in the state combined. 2. Kansas is extreme -- the only state that allows its bar to select a majority of its supreme court nominating commission. None of the other 49 states gives its bar so much power. Kansas stands alone.
3. Not only does the bar currently exercise a tremendous amount of power, but that power is exercised behind closed doors. The Nominating Commission’s votes are secret. There is no public record of who voted which way. This secrecy prevents journalists and other citizens from learning about crucial decisions in the selection of our highest judges. To learn more facts omitted by the JW, see http://www.kansas.com/2010/08/22/1457320/process-for-selecting-judges-is.html#ixzz0xR3EGEzp
or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265

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just_another_bozo_on_this_bus 1 year, 7 months ago

All of those suggest that the process can be improved to make it more transparent and Democratic. They in no way suggest that scrapping it altogether in favor of a process that would be completely politicized would be an improvement.

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Ware 1 year, 7 months ago

Bozo, you say reform is needed so if you're going to criticize others' proposals for reform you need to come up with something better. What's your reform proposal?

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just_another_bozo_on_this_bus 1 year, 7 months ago

From my perspective, "reform" means making something better. By that definition, what Brownback proposes is not "reform." It's just overt politicization of the selection process.

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Cait McKnelly 1 year, 7 months ago

"There’s no reason to throw out a judicial selection system that has been working in Kansas for more than 50 years."

I can think of one and only one; what amounts to a power grab by the party of Sam Brownback (I refuse to dignify it with the name "Republican") by completely destroying the system of checks and balances.
Every judge in the state system comes up for review and is voted on by the entire electorate as to whether or not to retain or discharge them. That is democracy in action.
It's actually rather scary to me that the people of the state tolerate this even being suggested. What happened to the free thinkers that founded the "Free State"?
Wow...just wow.

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Hardhawk1 1 year, 7 months ago

Professor Ware: the KBA 4-5-6 plan addresses your concerns, save one. The one it does not address is the closed voting. That can be changed easily.

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Dan Eyler 1 year, 7 months ago

I agree with Ware. Thanks for your efforts in bringing these concerns to light. It makes it very difficult to defend the current process. I would go one further. Term limits.

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Centerville 1 year, 7 months ago

For one thing, it hasn't been working for 50 years. When Nuss got off the hook for cutting a deal with his law firm in the last school funding shakedown, it was obvious that something is very, very wrong. Two things you won't see reported: how much of the latest $400 million is to go to Nuss' law firm, and that the Bar Assn is already negotiating to mitigate what even they know is a ridiculous system.

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Orwell 1 year, 7 months ago

All the arguments about transparency, "control" by attorneys (hardly a monolithic group) and denial of democracy are hogwash. As Cait48 notes, every judge is on the ballot every four years. The fact that non-retention by the voters is exceedingly rare is proof positive that the current system has reliably produced good results.

No, the facts are these: Governor Brownback (and his minions) can't tolerate anyone in a position of authority whose views differ from his, or who might limit his near-dictatorial control over state policy. It's necessary, therefore, to get rid of a process that preserves an independent judiciary. Only after that decision is made does it become the task of Professor Ware and his ilk to gin up overblown generalizations and superficial complaints about the present system, and repeat them until all the wingers have learned the approved talking points.

The Koch Supermajority Project has already bought the governor a compliant legislature. Now all that remains is to sweep away an independent judiciary. That objective should be of far greater concern to the public than the subjective appeals to a perverse sort of "democracy" on which the public face of the effort relies.

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jafs 1 year, 7 months ago

I agree with a lot of that.

But, I'm not at all sure that retention by the voters means much, other than that most people don't know about their records, and just vote to retain them.

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jhawkinsf 1 year, 7 months ago

"The fact that non-retention by the voters is exceedingly rare is proof positive that the current system has reliably produced good results"

You chose to put an emphasis on "by the voters" so I assume you have supreme confidence in their judgement. Aren't those the same voters who elected Brownback and this particular legislature?

I've not read enough to form a strong opinion about this matter, so I'm just playing a little devil's advocate here. And in general, I mistrust the actions of our current governor, who is a buffoon in my opinion. Not that the position you take is incorrect. I just think there is a flaw in your logic.

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oldbaldguy 1 year, 7 months ago

Take a look at Texas and how they elect the Supreme Court there. Big bucks.

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