photo by: im Carpenter/Kansas Reflector

Chris Mann, Democratic nominee for attorney general, says the state’s merit-based system for filling vacancies on the Kansas Supreme Court properly emphasizes nonpartisan selections to the state’s highest court.

TOPEKA — The Republican and Democratic candidates for attorney general in Kansas disagree on whether the state Constitution ought to be amended to give the Kansas Senate veto power over a governor’s nominees for the Kansas Supreme Court.

GOP candidate Kris Kobach said Kansas should adopt the federal model that’s used to fill vacancies on the U.S. Supreme Court. Under that approach, the president unilaterally nominates a person to the nation’s highest court, but the nominee must be confirmed by the Senate.

Democratic nominee Chris Mann, however, said he would prefer to continue with Kansas’ merit-based nomination process for justices of the state Supreme Court. Under this model, which voters enshrined in the state’s constitution in 1958, a commission selects finalists for the court and the governor appoints one of them without the involvement of the Senate.

Mann, a Lawrence attorney, said that if Kansas’ process were like the federal process, it would unnecessarily inject the Senate’s partisan politics into the selection of justices.

“As an attorney, and having seen and witnessed that process, I think the process works well now,” Mann said. “We need to make sure we’re continuing to make nonpartisan selections for our judiciary.”

photo by: Tim Carpenter/Kansas Reflector

Kris Kobach, Republican nominee for attorney general, supports adoption of the federal model of Senate confirmation for nominees to the Kansas Supreme Court.

The commission

Under the current system for filling seats on the seven-member Kansas Supreme Court, a nine-member commission conducts public interviews with applicants and recommends three finalists to the governor, who then chooses one of them from the list.

Critics of the existing selection process have objected because five members of the commission — a majority — are chosen by lawyers rather than politicians. Advocates for the current format have argued that the commission’s vetting process emphasizes the nominees’ merit, while a process modeled on the federal selection method would invite cronyism.

Republican governors put one justice on the Kansas Supreme Court in the past 20 years; Democratic governors have named seven justices to the Kansas Supreme Court in that time.

Kobach, a rural Lecompton resident and former secretary of state, said that for 15 years he had advocated for amending the state Constitution to mirror the federal selection process. He said he thought Kansas’ merit-based selection commission was “deeply flawed.”

“I don’t think it has produced the best judiciary nor has it produced a nonpartisan judiciary. I think most attorneys, if you ask them personally, would say we actually have a fairly partisan Supreme Court right now,” Kobach said.

‘Envy of the world’

Attorney General Derek Schmidt, who is running for governor against Democratic Gov. Laura Kelly, said a federal-style selection process for state Supreme Court justices would add transparency to the process. Schmidt is a former state senator.

“I believe the United States’ federal judiciary, with all of its warts, is the envy of the world and is tremendous in terms of its contribution to our overall system of government,” Schmidt said.

In 2013, then-Gov. Sam Brownback signed a bill that altered the system for making appointments to the Kansas Court of Appeals. The Republican governor argued the federal model should be applied to the state Court of Appeals and the state Supreme Court.

The Brownback-era law abandoned merit-based reviews by the commission in favor of a closed process in which the governor was solely responsible for nominating state Court of Appeals judges. Under the law, the 40-member Senate could accept or reject nominees by majority vote.

Brownback’s first pick to the Court of Appeals under the revised system was Caleb Stegall, who was general counsel to the governor. Stegall was confirmed to the Court of Appeals. Brownback subsequently appointed him to the state Supreme Court via the merit-selection process.

Kelly, who is seeking reelection in November, issued an executive order in 2020 so that a nominating commission would review Court of Appeals applicants’ qualifications, conduct interviews with them and submit three nominees for her consideration. But her order didn’t change the requirement for Court of Appeals nominees to undergo confirmation votes by the state Senate. In 2020 and 2021, the GOP-dominated Senate rejected Kelly’s nomination of Carl Folsom after Republican senators said they though Folsom’s career as a state and federal public defender lacked breadth.

• Tim Carpenter reports for Kansas Reflector.