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

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Tuesday, December 17, 2019

The Politics of Kansas Supreme Court Selection and the Bar's Weak Argument about Judicial Independence

Kansas Governor Laura Kelly, a Democrat, appointed Judge Evelyn Wilson to the Kansas Supreme Court. "The state’s leading anti-abortion group, Kansans for Life, had called Wilson’s nomination 'purely political',” according to the Wichita Eagle, which noted the KFL "highlighted past contributions her husband made to politicians supportive of abortion rights, including Kelly and former Gov. Kathleen Sebelius."

Another retirement on the court, means "Kelly, who is about to finish her first year in office, will have already made a greater imprint on the court than the last two Republican governors, who served a combined eight years in office."

Republican legislators "plan to push next year for an amendment to the state constitution to eliminate the nominating commission and have justices named by the governor subject to Senate confirmation", notes AP's John Hanna, who adds: "Conservatives argue that the current system, in use since 1960, results in a court more liberal than the electorate and makes justices less accountable to voters. Supporters of the system contend it preserves judicial independence."

In fact, however, judicial independence relates more to judicial retention rather than initial judicial selection. For instance, federal judges are initially selected through senate confirmation and have life tenure, giving them tremendous independence. To the extent initial selection relates to judicial independence, the current Kansas system reduces judicial independence on the bar, by giving the bar power that belongs to elected officials in many states, as well in the selection of federal judges. More on judicial independence at p. 751 n.2, 769-74 of my article linked here.

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