Topeka ? During the last election, the Kansas Supreme Court found itself at the center of partisan political battles.

Gov. Sam Brownback openly campaigned against the retention of two justices, and he used controversial opinions, such as vacating the death sentences of two convicted killers, as a way of criticizing Democrat Paul Davis, alleging that if elected, Davis would appoint the same kind of “liberal” judges.

“I am not going to comment on that,” Chief Justice Lawton Nuss said during a rare news conference following his State of the Judiciary speech Wednesday.

But Nuss did have plenty to say about Brownback’s current proposal to change the way Supreme Court justices are selected.

In his State of the State address, Brownback called for a constitutional amendment that would either have justices directly elected by the people or move to something more like the federal model, where the governor could appoint whomever he chooses, subject to confirmation in the Kansas Senate.

“We’ve had (the current) system for almost 60 years now,” Nuss said. “Personally, I think it’s a great system. It’s known around the country as a merit system, and I think it is certainly worth keeping. I don’t see anything broken with it. I don’t see any problems with it.”

But Attorney General Derek Schmidt said he believes there could be some benefit to making courts more directly accountable to voters.

“I’ve always argued that the reason to consider change is to try to promote legitimacy, democratic legitimacy or general acceptance of opinions because that really is the power that the judicial branch has, and I think we have to cherish it and preserve it,” Schmidt said.

Officials at Justice at Stake, a nonpartisan group that monitors political developments in state courts, said Kansas would be making a mistake by changing to a more political appointment process.

“The move that Gov. Brownback and certain legislators have proposed is definitely not something we consider a good move for Kansas,” said Debra Erenberg, director of state affairs for the group.

Missouri was the first state to adopt a merit-based system, where governors choose judges from a handful of nominees that are first screened by a non-partisan nominating commission. It then spread to several other states, largely in response to corruption in states that either elected judges or allowed governors to select their own.

The ‘triple play’ of 1956

Nuss, an avid reader of Kansas history, noted that Kansas made the change in 1958 following an infamous political scandal that came to be known as the “triple play.”

The Kansas Historical Society recounts that story on its website, describing how in 1956, then-Gov. Fred Hall, a Republican, lost the party’s nomination for a second term. The person who did win the nomination, Warren Shaw, went on to lose the November general election to Democrat George Docking.

On Dec. 31, before the new governor took office, Chief Justice William Smith resigned, citing poor health. So on Jan. 3, with only 11 days left in office, Gov. Hall resigned, and Lt. Gov. John B. McCuish became governor. McCuish then immediately appointed Hall to the vacant Supreme Court seat.

It was considered perfectly legal at the time, but it created a public uproar. Lawmakers responded the next year by passing a constitutional amendment for a merit-based selection process, and that was approved by voters in the 1958 election.

Elections and appointments

“Currently, we have the least democratic system in America to select Supreme Court justices,” Brownback said. “With the court involving itself in so many public policy issues, it is time the selection process be more democratic.”

But Nuss argued that the merit-based process is democratic, in a sense, because anyone with an active law license who is at least 30 years old can apply for the job and be considered. And he argued the federal model of allowing the chief executive to appoint whomever he wants, subject to confirmation, is not something the state should copy.

“I think you just look at the problems that come out of Washington, D.C., and say for starters, that’s not necessarily a good method,” he said.

But he and other advocates for merit-based selection say the biggest dangers are in the direct election of judges.

“You have justices, or judicial candidates, going around the state asking for money,” he said. “They spend a lot of time campaigning for that office.”

He pointed to a recent case in West Virginia where, in 2004, the chairman of the Massey Coal Co. donated $3 million to a candidate challenging that state’s chief justice for re-election. The challenger won. Soon after, that justice heard the appeal of a case involving Massey and voted in the company’s favor by overturning a $50 million verdict against the company in a contract dispute.

The U.S. Supreme Court later ruled that the justice should have recused himself from the case.

Justice at Stake’s Debra Erenberg said that’s only one example of how an electoral system can corrupt the judicial process. Since the Citizens United decision, there has been an explosion of third-party, independent money flowing into judicial election campaigns, and they now make up the vast majority of all campaign spending in judicial elections.

“Advertisements in judicial elections are almost entirely related to criminal cases, accusing judges of being soft on crime,” she said. “And there have been studies that show as judges get closer to elections, they are more likely to rule harshly against defendants. In fact, though, if you look at the people paying for the ads, that’s not the reason why they’re trying to unseat the judge. It’s usually more about economic issues.”

Political analysts have said Brownback probably has enough support to get a constitutional amendment through the Legislature, where it must pass both chambers by at least a two-thirds majority.

But then it must be approved by voters in a general election, and there the proposal may have more difficulty.

In 2013, Justice at Stake commissioned a statewide poll that showed 61 percent of registered voters, including 57 percent of registered Republicans, opposed doing away with the merit system in favor of direct appointments by the governor.

There has not been any recent polling, however, on the question of switching to direct elections.