Topeka ? When Kansas Chief Justice Lawton Nuss gave his annual State of the Judiciary address in January, one topic was never discussed, but it was plainly visible.

During the pomp and ceremony of the occasion, just before Nuss took the podium, the bailiff asked everyone to rise as the other six justices filed in, followed by the 13 judges of the Kansas Court of Appeals. Of the 20 appellate court jurists in Kansas, only one face was non-white.

Appeals Court Judge Henry W. Green, an African-American, is the only non-white judge above the district court level in Kansas.

And throughout the state judicial system, according to the Office of Judicial Administration, of the 287 judges at the district, appellate and Supreme Court levels, racial minorities make up 3 percent of judges: four African-Americans, five Hispanics, and one Asian-American. And that’s in a state where, according to the most recent census estimates, Hispanics and other non-white individuals now make up 23 percent of the population.

“It’s a terrible situation, actually,” said Anne Burke, an Overland Park attorney who chairs the Kansas Supreme Court Nominating Commission.

That’s the group set up under the Kansas Constitution to receive applications for appointments to the state’s highest court and forward three names to the governor, who makes the final appointment.

It’s a system known as the “merit selection” process, and it’s also used in about half of the state’s 31 judicial districts, including the 7th District, which is Douglas County.

In the other half of the districts, including Wyandotte and Sedgwick counties, judges are elected in partisan races, and those are the only districts that have African-American judges.

The result, says Court of Appeals Judge Karen Arnold-Burger, is a court that does not look like the community it serves, and that can have serious consequences.

“Studies have been done that say people are more likely to comply with orders of a court, and more likely to respect a court’s decision, if the court looks like them,” she said. “If you have a bench with no one of color on it, then when people of color come before the court, they perceive, rightly or wrongly, that they are not going to be understood, that the system is stacked against them.”

Explaining the racial imbalance

Burke, who has chaired that commission for six years and previously served on similar district court nominating commissions, said part of the problem is that very few minority lawyers apply for those positions.

“What I’ve experienced at both the district court and Supreme Court levels is the dearth of applications for these positions,” she said. “I don’t have a theory as to why people of color aren’t applying. It would be nice to see our bench more representative of our demographics.”

Christi Bright, a Lenexa attorney who chairs the Kansas Bar Association’s Diversity Committee, said she believes the problem lies with the nominating commissions themselves.

“They are biased too, in my opinion,” Bright said.

She said that when the nominating commissions send their list of three nominees to the governor, it is often obvious which one the commission prefers. Only one will come from a large firm and have significant litigation experience; the others will have less experience and will appear to be “throw-away” candidates.

“It’s sort of known to everyone that when you send up a person that is not from a firm, and doesn’t have the background, it already says who they’re trying to get the governor to appoint,” Bright said.

The role of law schools

Bright, as well as many others in the Kansas legal community, said another factor is the lack of diversity in the legal community itself. To be a judge, a person has to be at least 30 years old and hold a license to practice law in Kansas. But the state’s two law schools – Kansas University and Washburn University in Topeka – don’t produce enough minority lawyers.

Washburn Law School Dean Thomas J. Romig said that’s not for a lack of trying.

“Both KU and Washburn have been trying very hard to recruit qualified minorities of all ethnic groups because it makes for richer diversity in the law school,” Romig said. “There is a very small pool of people applying for law school in these groups, and those applicants are often pulled out to law schools in other states.”

During an interview Friday, Romig reached for a book with pictures of the 330 students currently enrolled in the law school and estimated roughly that 48 of them, or about 15 percent, were non-white. But he said that percentage fluctuates greatly from one semester to another.

“It’s a very, very competitive environment for talented prospective students from the minority communities,” he said.

Changing the selection process

In his State of the State address in January, Gov. Sam Brownback called for changing the way Supreme Court justices are selected, and the House Judiciary Committee will open hearings Wednesday on two proposed constitutional amendments to accomplish that.

One calls for moving to a system of direct elections, while the other calls for moving to the federal model in which the governor would appoint justices, subject to Senate confirmation.

The motive behind that, however, is not to achieve more diversity on the bench. Brownback and other supporters of a change say it’s about their frustration with many of the court’s recent decisions, ranging from school finance cases to death penalty appeals, which they argue are out of step with the views of most Kansans.

Jordan Yochim, executive director of the Kansas Bar Association, said KBA opposes changing the current system, and he said the merit selection process is more suited to promoting diversity, especially when compared to direct elections.

“(That’s) because the selection is based on judicial qualifications, rather than other factors that might go through voters’ minds, or how much money they can raise for an election campaign,” he said.

Debra Erenberg, director of state affairs for Justice at Stake, a national group that monitors political developments in court systems, said the type of selection process used doesn’t really affect the diversity on the bench.

“There’s mixed evidence on whether merit systems are better than electoral systems in terms of promoting diversity,” she said.

Regardless of which system a state uses, Erenberg said, diversity “needs to be an intention of the system. It needs to be a goal going in.”

“In either case, it’s not something that happens organically,” she said. “People who are part of the system need to consciously bring a desire to recruit a diverse bench.”