Professor questions judge selection
State Rep. Paul Davis, speaking for the Kansas Bar Association, says the current judicial selection process allows the Kansas Supreme Court to maintain its independence from politics (“Judicial selection process criticized,” Journal-World,” Dec. 1). But nine of the last 11 people appointed to that court belonged to the same political party as the governor who appointed them. This is a highly partisan outcome from a system advertised as “non-partisan.” Moreover, governors consistently appoint only members of their party to the Supreme Court Nominating Commission.
What makes the Kansas Supreme Court selection process unusual is not that it’s political, but that it gives so much political power to the bar (the state’s lawyers). Kansas is the only state that gives its bar majority control over the commission that nominates Supreme Court justices. It’s no surprise that members of the Kansas bar are happy with the current system because it gives them more power than the bar has in any of the other 49 states and allows them to exercise that power in secret, without any accountability to the public.
I recently published a paper (available at www.fed-soc.org/kansaspaper) that researched how all 50 states select their supreme court justices. Based on this research, I recommend that Kansas move toward the mainstream of states by reducing the power of its bar and increasing the openness and accountability of the process for selecting Kansas Supreme Court justices.
While some states have individual quirks, three basic methods prevail around the country: commissions, elections and senate confirmation. The commission system is the most elitist system because it tends to concentrate power in the bar, a narrow, elite segment of society, (although no state gives the bar quite as much power as Kansas). The other extreme – electing judges – is the most populist method of selecting a supreme court. It risks turning judges into politicians and thus weakening the rule of law. In between these extremes is the more moderate approach of having the governor’s nominee win senate confirmation before joining the court.
Our nation’s founders adopted this approach in the U.S. Constitution, and today more than a dozen states also select their supreme courts with confirmation by the state senate or similar body. While some claim that senate confirmation in Kansas would be a political “circus,” experience in the states that use it contradicts this claim. Experience in these states suggests that senate confirmation of judicial nominees works well and avoids both the extreme of elitist, bar-controlled courts and the extreme of populist courts swaying with the prevailing winds rather than standing firm for the rule of law. In short, senate confirmation of Kansas Supreme Court justices is a worthwhile reform.