Kansas Judicial Retention Elections

As I noted in October, The Kansas Republican Party's chairman and GOP Gov. Sam Brownback encouraged voters to remove two of the court's seven justices in the Nov. 4 election.  The two, Justices Lee Johnson and Eric Rosen, both appointed by former Democratic Gov. Kathleen Sebelius, kept their jobs but won less than 53 percent of the vote.

Previously, no Kansas justice had received a "yes" vote of less than 62 percent and that was in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier.

As Brad Cooper of the KC Star writes, "Some scholars attribute the increasing profile of retention elections to the way states like Kansas pick judges. The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations."  
 
What is this screening process and what role does it give lawyers? 

 As Cooper writes, "Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers."  

What is crucial, however, is that those five lawyers are selected in a shockingly undemocratic way.  They are selected in elections open to only about 10,000 people in the state: the members of the Kansas Bar. No other state allows its bar to select a majority of its nominating commission.  Kansas Supreme Court selection is undemocratic and extreme.

I'm not sure about Cooper's statement that "About half the states choose Supreme Court judges using screening committees similar to Kansas’ system." Perhaps this means only that about the half states have a nominating commission, but the keys are:

1. Is if there is a nominating commission, then who selects its members.  Who picks the pickers? 

2. Is the nominating commission able to ensure that one of its nominees joins the court or is the governor's choice among those nominees subject to senate confirmation which, if denied, may require the commission to nominate someone else.

Retention Elections for Kansas Supreme Court

The Kansas Republican Party's chairman and GOP Gov. Sam Brownback last week endorsed efforts by group of crime victims, Kansans for Justice, to get voters to remove two of the court's seven justices in the Nov. 4 election, AP reports.  The two, Justices Lee Johnson and Eric Rosen, were appointed by former Democratic Gov. Kathleen Sebelius.

As in other states, judges almost never lose retention elections in Kansas, the story continues: "Previously, elections haven't been much of a threat to justices' careers. Since the state stopped electing them to the bench in 1960, voters haven't removed any justice. None has received a "yes" vote of less than 62 percent. But the lowest margins were recorded in 2010, when the anti-abortion group Kansans for Life waged a "fire Beier" campaign against Justice Carol Beier."

Retention elections, with no opposing candidate, are designed to be easy for incumbents to win, as I explain more toward the end of this law review article