Archive for Saturday, July 27, 2013

Your turn: Judge selection reflects totalitarianism

July 27, 2013


I was pleased to read Scott Burkhart’s well-phrased comment (Public Forum, July 23): “When our leaders step in and work to manipulate this system (our “rule of law”), although one group might think it fair, we move dangerously close to totalitarianism where those in power make the rules and call the shots.”

Our current Legislature and the governor have brought us, in Scott’s phrase, “dangerously close to totalitarianism.” By eliminating our long-standing system of nonpartisan judicial selection for our Court of Appeals and threatening to do the same to our state Supreme Court, they “manipulate this system” for partisan political reasons.

Our nonpartisan merit system for selecting judges for the Supreme Court was established by our Republican Legislature in 1958. It has worked very well, producing judges that are both competent and fair. Since merit and judicial temperament rather than political ideology are emphasized, extremists of either left or right are rarely nominated. The system worked so well that the same plan was adopted when our Court of Appeals was created by the Republican Legislature in the mid-1970s.

In 2009, however, the absence of right-wing extremists on our appellate courts led the group that has captured control of our current Republican party to mount a campaign to eliminate our nonpartisan selection system. They want judges that can be depended upon to support their positions, regardless of how extreme or unconstitutional they may be. Our current rulers want to both “make the rules and call the shots.” Competence and fairness of judges are secondary concerns, at best, to them. Scott aptly calls that totalitarianism.

Both Republicans and Democrats supported our nonpartisan system and, for the first two years of the Brownback regime, were able to fight off the attempts to repoliticize our courts. To overcome this resistance and to generally stifle all opposition, the extremists pulled off a coup in the August 2012 Republican primary, flushing most of the moderate Republicans out of the House and Senate. Thus, they were able to subvert nonpartisan selection for the Court of Appeals. They threaten to do the same to the Supreme Court.

If there is no independent judiciary to declare the “rule of law,” there will be nothing to stop the drive toward totalitarianism. Thanks, Scott, for reminding us of the danger we face.

Robert C. Casad is a Lawrence resident and John H. and John M. Kane Distinguished Professor of Law Emeritus at Kansas University.


racerx 4 years, 10 months ago

I'm no fan of Brownback and his minions worshiping at the alter of Koch. And, I'm don't know whether the old system of choosing judges is better than the new one. I only offer an observation. Kansas was the only state selecting judges that way. When you're the only one doing something, you're an innovator. But, innovation can be good or bad. If what you're doing is a great idea, others quickly follow. Yet, no other state followed after decades of Kansas using that system. Why?

Solon 4 years, 10 months ago

racerx has been seriously misinformed. Our selection system is often called the Missouri Plan, since it originated in Missouri. I don't know how many states have merit selection of judges, but at least 7 states and the District of Columbia had plans essentially like ours, where a majority of the selection committee was lawyers. We were definitely not the first with merit selection nor the first to recognize that lawyers should form a majority of the committee that choose the lawyers who are to become the judges.. Attacking merit selection of judges is a nationwide program of various right-wing groups, most notably, the Federalist Society. The notion that our system is somehow unique was promoted by a KU law professor who argued that it was unique because lawyers were the ones who selected all the lawyer members of the nominating committee. In the other states where lawyers formed a majority of the selection committee, one of the lawyers was the chief justice of the state.

Armored_One 4 years, 10 months ago

If 'far left' and 'far right' are the extremes at either end of a stick, wouldn't the middle of the stick offer the best solutions?

I know, I know, wishful thinking that either side would budge. Bristle like a startled cat at the thought of compromise, maybe, but not budge.

Moderate. Extremist. Liberal. Conservative.

Whatever happened to just doing what was actually right and not playing a big game of blind man's bluff with our economy/legal system/fill-in-the-blank? I think Lincoln was about the last one that actually did the right thing. I'm sure there are a couple of bright spots along the way to the here-and-now, but those street lamps are few and pretty far apart in the scheme of things.

Seth Peterson 4 years, 10 months ago

Which is why you and your arguments can't be taken seriously.

racerx 4 years, 10 months ago

Yes, Solon, you're right. I should have done my homework rather than relying on my memory of a previous article.

Liberty275 4 years, 10 months ago

I don't know that I like non-elected citizens being involved with the selection of judges. The only people that should be involved are the ones we can hold accountable on election day.

tomatogrower 4 years, 10 months ago

The problem is radicals have taken over the primary system, so no one is being held accountable until Republicans wake up to the radicals that have taken over their party.

Solon 4 years, 10 months ago

Liberty275: I take it that you are not concerned about the ability or fairness of the judges so long as you can hold the governor and a majority of the senate accountable for what the judges do. That makes no sense at all to me. I think it is much better to hold the judges themselves accountable on election day, as you can do under the non-partisan system. Under the political selection system that has been adopted for selection of the Kansas Court of Appeals, political ideology is the real concern. The people who choose the lawyers who will become the judges may know nothing about what it takes to be a good lawyer, much less a good judge. You can end up with a court staffed by people with inadequate understanding of law and who lack the ability to be impartial That is why most states that have non-partisan selection systems rely heavily on input from lawyers.

Liberty275 4 years, 10 months ago

If judges have to worry about re-election, at least constantly, they will become subject to interests that can fund the best campaign. Judges need to always be impartial, and elections undermine that.

I think a good compromise would be a confirmation of state and local judges by a one-time referendum during the first national election following their 8th year in office. That way real problem judges can be weeded out while mostly leaving the good judges more-so free of the need to raise millions of dollars for a campaign.

"judges may know nothing about what it takes to be a good lawyer"

Why should a judge know anything about law?

"The people who choose the lawyers who will become the judges may know nothing about what it takes to be a good lawyer, much less a good judge."

Certainly, they might not know any law, and in that case the state or local government should provide payment for an attorney to explain the law. Actually, they should pay for as many attorneys as is requested, maybe up to 10.

"political ideology is the real concern"

So you use a confirmation vote a decade later and vote out the unfair hacks. You've already voted out the guy that appointed them and the people that recommended them. Now if you would like the recommending attorneys to have their licence voted on so they can be held accountable, I could go for your system although I doubt many lawyers would. Our court system isn't worth risking their practice.

jafs 4 years, 10 months ago

"Why should a judge know anything about law?"

Really? That's precisely their job, to understand and apply the relevant laws, and instruct juries on them.

Liberty275 4 years, 10 months ago

Really. The attorneys need to know the appropriate laws and the jury can be instructed from rote. The judge makes decisions based on the law as advocated by the prosecution and defense.

But since this is a concern you have, where in Kansas state law does it say judges must know anything about law?

jafs 4 years, 10 months ago


A judge's job is to understand and apply the law - an attorney's job is to advocate for their clients.

This is a basic, fundamental facet of our system - it doesn't have to say anything specific about it in KS state law.

adastraperapathy 4 years, 10 months ago

I just love it when the Governor and his political politburo argue that Kansas needs this system because of how great it works in Washington.

What a joke! Not only do you have self-proclaimed small government "conservatives" arguing for the DC system, you have a former US Senator (Brownback) suggesting that Kansas Senate appointments are comparable to US Senate appointments.

Granted, many Presidential appointments are derailed in the US Senate due to partisan politics, but when the system does work, it does so in part because each US Senator has dozens of personal staff as well as committee staff, partisan staff, and legislative research.

Kansas state senators, unless they are in leadership, have one part-time secretary. The legislative research department helps research for the appointment process, but considering how the Brownback administration has punished civil servants who don't swear political support to the Governor, you can't count on them to suggest the Governor's appointments are inexperienced, unqualified, or extreme.

So, instead of having the Federal system where Senators at least have the resources to properly vet candidates, you are going to have a Senate majority that was elected by Brownback's back pocket giving approval to whomever he nominates.

Even those state Senators who want to do a good job of vetting nominees aren't going to have the resources to do it well, especially when they don't have the same privileges that US Senators enjoy to request further information and hearings.

Considering his own service in "the world's greatest deliberative body," his use of US Senate privileges while he was there, and all of the staff he has relied on during his long political career, you might think Brownback would appreciate the need for such checks and balances.

No need for them when he is the ruler, I guess!

237 years of freedom from British monarchy and we still have politicians in the US who believe they rule by divine right.

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