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.

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.

Kansas Supreme Court Elections -- Competing Video Ads

Kansans for Fair Courts supporting retention of Kansas Supreme Court justices:

Kansans for Justice opposing retention of Kansas Supreme Court justices:

Stephen Ware on TV Discussing Judicial Retention Elections -- Kansas Supreme Court

Kansas Supreme Court judicial retention elections discussed on 6 News, Lawrence, Kansas. Appearances by KU Law Professor Stephen Ware, Amy James, president of Kansans for Justice, and Ryan Wright, executive director of Kansans for Fair Courts.

Kansas Supreme Court Retention Election Campaign Material

Retention and Non-Retention of Kansas Supreme Court Justices in 2016

Websites advocating retention of Kansas Supreme Court Justices in 2016, and websites advocating their non-retention (removal).

Kansas Increases Openness of the State's Judicial Selection

A bill that will make the Kansas Supreme Court Nominating Commission subject to the state’s open records and meetings laws has been signed by Gov. Sam Brownback. This new law should fix one of the Kansas Supreme Court selection system's major problems, hiding the votes of the commission, as hopefully the commission and courts will interpret this law to require the commission's votes be public records.

The other major problem with the Kansas Supreme Court selection system, the undemocratic selection of the commission, remains. Several members of the commission are selected in elections open only to members of the bar. However, secrecy in these elections has also been reduced by the recent bill, as it requires the clerk of the Kansas Supreme Court to submit a list of the lawyers eligible to vote to the Kansas Secretary of State’s Office ahead of these elections.

Finally, the bill requires the governor to disclose applicants for the Court of Appeals, the Wichita Eagle explains.

d more here: http://www.kansas.com/news/politics-government/article78389772.html#storylink=cpy

KS, AR, OK, PA, WI, GA Judicial Selection Battles

NY Times summarizes battles over several states' courts.

“We need to get past the fiction that judges are umpires that just call balls and strikes,” Indiana University Law professor Charles Geyh said. “Ideology will affect their decisions.”

Kansas House Votes on Replacing Bar with Senate As Check on Governor's Power to Appoint Supreme Court Justices

Most members of the Kansas House voted to replace the state's bar-favoring "Missouri Plan" nominating commission with a senate confirmation system like that found in the US Constitution, but this reform did not reach the 2/3rds needed for a constitutional amendment.

Which representatives voted for an against shown on this Roll call vote

NY Times Connects Kansas School Funding with Kansas Judicial Selection

Unfortunately, the Times ("Under the current system, the governor chooses from three nominees put forth by a nine-member committee that includes lawyers and appointees of the governor") does not say who selects those lawyers, which is the problem with the current Kansas Supreme Court selection process.

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.

Senator Pat Roberts Supports Reform of Kansas Supreme Court Selection

According to the Kansas City Star, "Roberts telephoned lawmakers Thursday — making five or six calls — promoting a bill to let the governor appoint judges to the Kansas Supreme Court with the consent of the state Senate. The measure is a priority of Republican Gov. Sam Brownback."

One of the Republicans opposed to Roberts and Brownback is Rep. Susan Concannon of Beloit. She "supports the current system for picking judges. She received a voicemail from Roberts asking her to support Brownback’s efforts to change that, she said, but “it didn’t change my mind.”"

Bills to Change Kansas Supreme Court Selection

As reported in today's Lawrence Journal World. Three bills: lowering judicial retirement age and either judicial elections or "federal model" senate confirmation.

This article errs in referring to Kansas Bar Association when it should say Kansas Bar (not all members of the bar in the association and vice versa).

Kansas Supreme Court Selection Reform and School Finance

This article in the Wichita Eagle by Bryan Lowry is one of the better news stories on the Kansas Supreme Court selection process because it describes that process accurately "The current system relies on a nine-member commission to choose nominees, with four of those members appointed by the governor and the other five selected by a vote of the state’s practice attorneys" rather than (as many lower quality articles say) "a non-partisan commission of attorneys and non-attorneys."

Bryan Lowry also rightly refrains from using the propaganda phrase "merit selection" to describe the current system.

Kansas Gov. Brownback to Pursue Judicial Selection Reform

In this State of the State address this evening, Brownback "promised to take another run at a constitutional amendment that would give him and future governors the authority to pick the justices on the state Supreme Court, with the consent of the Senate", according to the Wichita Eagle which, unfortunately, uses the propagandistic phrase "merit system" to describe the current Kansas Supreme Court selection process. The Eagle describes the current system as involving "a commission of lawyers and lay people" but does not point out the controversial and undemocratic aspect of this system: Kansas is the only state that allows its bar to select a majority of the nominating commission.

As the Eagle says, "The Legislature already changed the selection process for the state Court of Appeals, but changing it for the Supreme Court would require a constitutional amendment."

Renewed Push to Change Kansas Supreme Court Selection

Changing the way Supreme Court justices are selected will be the highest priority for the majority of the Kansas Legislature this year, according to Chapman Rackaway, a political science professor at Fort Hays State University.

"Obviously the governor wants selection of all judges to be consolidated under the governor’s office, and so that’s going to be a front-burner issue for this legislature," Rackaway said. "They’ll get it done. They have plenty of loyalty to the governor. They share his goal on this. So I think that would be a pretty easy thing for them to get done."

I don't know that I agree with this.  First, a constitutional amendment to change Kansas Supreme Court selection requires two-thirds of both houses of the legislature, which is part of why constitutional amendments are pretty rare.

Second, I wouldn't characterize this issue as this governor wanting more power over judicial selection.  Those of us advocating reform have been advocating it through several governors of both parties and, in my case, advocating it nationally regardless of the state's political leanings.  Moving from the Kansas's current bar-empowering version of the Missouri Plan to a senate confirmation is a matter of principle for the long-term, not a way to empower a particular governor at a particular time and place.

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.

Campaign Finance Law for Judicial Retention Elections

Kansas does not require financial disclosures by groups seeking to influence retention elections, according to ProPublica.

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

KS Gov. Brownback Endorses Removal of Kansas Supreme Court Justices

Republican Gov. Sam Brownback said he's voting against retaining state Supreme Court Justices Lee Johnson and Eric Rosen.  In contrast, most Kansas lawyers and judges want to retain them, according to a survey by a committee of bar leaders and leaders of progressive groups such as Kansas Appleseed, Mainstream Coalition, and League of Women Voters.

This has long been the pattern around the country.  When judges are controversial, it's usually conservatives who want to remove them, while progressives and the bench and bar want to retain them.  That was true in Iowa a few years on same-sex marriage and also true going back at least as far as California's Rose Bird in the 1980's.