Senate Confirmation of State Judicial Nominees: Significant Impact?

In 2013, Kansas changed its Court of Appeals selection process to include state senate confirmation of the governor's nominee--a reform that may have just had a significant impact.

On March 15, 2019, Kansas Governor Laura Kelly, a Democrat, nominated District Judge Jeffry Jack to the Court of Appeals. However, a few days later, Gov. Kelly withdrew her nomination after tweets surfaced that showed Judge Jack "voicing his disdain for conservative leaders and Republican lawmakers in sometimes coarse, profane language" according to the Kansas City Star, which reports they "sometimes include F-bombs."

The Star also notes "In a statement regarding her appointment of the judge, Kelly said Jack was chosen from a list of finalists recommended by a committee of lawyers and non-lawyers, and that the choice was based on merit."

In nominating Judge Jack, Governor Kelly said: “Because I value transparency and the judicial merit-selection process, one of my first acts after my election was to create a committee of knowledgeable lawyers and non-lawyers to recommend finalists for the Court of Appeals vacancy...That committee ensured that our next Court of Appeals judge would be selected through an open process based on merit, and I thank the members of nominating committee for their work.”

Under the headline "After Judge Jack fiasco, legislators call for more oversight of court nominations", the Kansas City Star notes that: "One day after Gov. Laura Kelly withdrew his nomination to the state Court of Appeals, Republican lawmakers are pushing to remove Judge Jeffry Jack from his seat on the 11th District Court, and to mandate Senate confirmation of Supreme Court judges."

The Kansas Supreme Court is now chosen through a nominating commission, most of which is selected by the bar. The commission gives three names to the governor, who chooses the final candidate, without senate confirmation.

Progress for Bill to Reduce Secrecy of Kansas Supreme Court Selection Process

The Kansas Senate passed SB197 which would require a public list of which lawyers are eligible to vote for the supreme court nominating commission and which lawyers voted. It would also subject the commission to the Open Meetings Act.

For the Kansas Court of Appeals, SB 197 would require the governor to make public each applicant's name.

Kansas Senate Confirmation Hearing for Court of Appeals

The Senate Judiciary Committee voted yesterday in favor of Kathryn Gardner's confirmation to the Kansas Court of Appeals. The hearing "was tense as committee chairman Republican Sen. Jeff King aggressively questioned her qualifications." This is in contrast to the predictions of some who worry that if the senate is controlled by members of the governor's party the governor's nominee will not be scrutinized seriously.

Also, some people complain that a senate confirmation process does not reveal who other than the governor's nominee applied for the position. For instance, AP reports Sen.Carolyn McGinn said she "believed Gardner answered questions well, but wished the names of other applicants to the position were made public." But two lawyers (Suzanne Valdez and Dennis Depew) told The Wichita Eagle that they applied.

Kansas Supreme Court Applicants Include Governor's Former Counsel

As Scott Rothchild puts it, "Six months after having been sworn in as the newest judge on the Kansas Court of Appeals, Caleb Stegall is seeking a promotion to the Kansas Supreme Court."  While Kansas Court of Appeals judges are appointed by the governor subject to senate confirmation, Kansas Supreme Court justices are selected under a system in which a nominating commission (5 of whose 9 members are selected by the bar) screens applicants and submits the names of 3 finalists to the governor.

The senate confirmation system is compared to the nominating commission system here (short) and here (long)

Kansas Gov. Brownback to pick Supreme Court Justice under System he Opposes

To his credit, in my view, Kansas Gov. Sam Brownback wants to move Kansas Supreme Court selection from a particularly extreme version of the Missouri Plan to a democratically-legitimate method of judicial selection, such as the US Constitution's senate confirmation system, which Kansas last year adopted for its Court of Appeals.

The first vacancy on the Kansas Supreme Court of Gov. Brownback's time in office has just arisen so the governor may be required to use the high-court selection system he opposes.  As the very good state-house reporter John Hanna writes:

Moritz's confirmation gives conservative Republican Gov. Sam Brownback his first chance to appoint someone to the seven-member Kansas Supreme Court. However, under the state constitution, a nominating commission will screen applications and name three finalists for Brownback, and legislators will have no role after his appointment.

Time Limits for Judges to Rule

One of the reasons many people support changing to a less insular Kansas Supreme Court selection system is the long time it takes the court to rule in many of its cases.  The Kansas Legislature is considering a bill that would create "soft deadlines" for the state's judges. The Lawrence Journal World reports "Senate Vice President Jeff King says six states have similar laws on time limits, which can withhold pay from judges who are tardy in their rulings."

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.

Top 2 Issues for Kansas Legislature Relate to Kansas Supreme Court

According to the Lawrence Journal World, the Top 2 issues in the upcoming Kansas legislative session are the Kansas Supreme Court's upcoming school funding decision and the method by which the court is selected.

I favor moving the Kansas Supreme Court (as recently occurred for the Kansas Court of Appeals)  from a Missouri Plan system with a nominating commission that gives disproportionate power to the bar to a senate confirmation system modeled on the US Constitution.

Kansas Bill to Require Public Release of Judicial Applicants

A bill was filed to require public release of names of those applying for position on the Kansas Court of Appeals, the Lawrence Journal World reports.   Governor "Brownback declined to make the applicants' names public, saying it would hurt the chances of getting qualified individuals to apply." 

I don't know why there have to be formal applications at all.  Does anyone ask the president who applied for a US Supreme Court vacancy or to be secretary of state?

Filibustering or Delaying Confirmation Votes on State Judges

In about a dozen states, the governor's high court nominees face a confirmation vote by the state senate or other popularly elected body.   Should the senate have to hold such a vote promptly or should it be allowed to delay a vote? 

Republican New Jersey Governor Chris Christie is, Bill Raftery (Gavel to Gavel) points out, finding it hard to get his judicial nominees through the Democratically controlled Senate because "the Democratic leadership of the Senate has simply declined to schedule hearings or votes for nominees."  A Republican NJ senator has introduced a resolution would counteract that, providing “a 90-day time limit on hearing nominations to the Supreme Court. If the Senate refuses to vote within 90 days, the nominee would win confirmation automatically.”

As Bill Raftery explains, other states have automatic confirmation deadlines like this (including my state of Kansas which recently instituted a senate confirmation system for its court of appeals) and other states have automatic rejection of nominees if a vote is not held by the deadline.