Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Saturday, January 18, 2014

Kansas Judicial Selection in Wall Street Journal

Wall Street Journal op-ed by Stephen Moore, entitled "Kansas Democracy Lesson", says upcoming school funding decision "is also a test of the state Supreme Court. Four of the seven Justices were appointed by former Governor Kathleen Sebelius, of ObamaCare fame, and nominees are chosen by a commission dominated by the State Bar Association. The commission selects three potential nominees, and the Governor must choose one of the three.  This gives the lawyers' guild effective control of the judiciary, creating a conflict of interest and pushing the judiciary to the left. Kansas Republicans want to change this selection process and let the Governor nominate state Supreme Court judges subject to state Senate confirmation, following the federal model. If the Justices impose an undemocratic tax increase, the GOP should move swiftly to reform judicial selection."

The commission has a majority of members selected by the state bar, not the state bar association.  (To be licensed to practice law in the state, a lawyer does not have to be a member of the association.)  This distinction is lost on many.  For instance, I wrote an op-ed years ago for the Wichita Eagle that said "bar" but the editors changed it to "bar association".

More substantively, I'm glad to see more national attention for the problem (in my view) of the bar having disproportionate power over judicial selection by getting a special role in selecting members of the nomination commission.  This has been my theme for many years and the problem is more extreme in Kansas than in any other state.  I think it's a problem whether it pushes the judiciary Left or Right or neither. But politically, I think Stephen Moore is right that legislators get more interested in judicial selection when judges tell legislators to spend more money on public schools.

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