Critics of the way judges are appointed to the Kansas Court of Appeals were relentless in their contention that the process was controlled by too small a group of Kansans. The fact that five members of the nine-member Supreme Court Nominating Commission are elected by attorneys across Kansas tainted the system, they said, giving an elite group in the state too much control over a process that should be more accountable to the people.
So, without putting their opinion to any kind of public vote, Kansas legislators threw out that system and put the “process” of selecting judges for the state’s second highest court almost entirely in the hands of one person: the governor, now Gov. Sam Brownback, who has announced his intention to close most of the court selection process to public scrutiny.
Last week, Brownback’s office confirmed that it had received “a number of applications” for the newly created 14th position on the Court of Appeals but indicated that neither a list of applicants or a list of finalists for the job would be released to the public. The only name that apparently will be released is the name of the governor’s choice, which then will be forwarded to the Kansas Senate for almost-certain confirmation.
This process is a stark contrast to the 30-year-old practice of the judicial nominating commission, which released a list of everyone nominated by themselves or others for a court appointment. After interviewing and considering those seeking an appointment, the commission would make public a list of three nominees it was sending to the governor, who picked his or her appointee from that list. Throughout the process, the public was informed and had the ability to comment on those being considered for the key court position. Now, the only opportunity the public has to influence the process is at the very end, after the governor has announced his appointment and before his appointee is considered for confirmation by the Kansas Senate, a group that is elected but may or may not be more responsive to the people of Kansas than to narrower political interests.
The only reason this closed process isn’t also used to select new members of the Kansas Supreme Court is that making that change would have required an amendment to the Kansas Constitution rather than the simpler statutory change that altered the Court of Appeals appointment process. However, Kansans need to be aware that legislative leaders are working hard on a system that would make Supreme Court appointments subject to the same kind of closed, politically vulnerable process that now rules the Court of Appeals.
This system is not more democratic, more open or in any way, better for the state of Kansas. If lawmakers think there are too many attorneys on the nominating commission, they should change the makeup of the commission, not throw out a system that has worked well in Kansas for decades.