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

State Supreme Court Campaign Contributions

State supreme court campaign contributions detailed in a report by the Brennan Center, which is summarized by law professor Rick Hasen.

The progressive Brennan Center report uses strong language about Kansas conservatives: "Bullying in the Heartland—Political Assaults on the Kansas Supreme Court."

It also discusses North Carolina, Ohio and Tennessee. 

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."

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

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.

Kansas Gov. Debate Features Judicial Selection

Kansas Gov. Sam Brownback "assailed Democratic challenger Paul Davis Tuesday as a liberal who would appoint Kansas Supreme Court justices overly sympathetic to violent criminals, and Davis accused the Republican incumbent of trying to exploit a high-profile Wichita murder case to boost his re-election chances."  AP explains "The confrontation during their fourth and final debate came on the same day Brownback's campaign released a television ad referencing brothers Reginald and Jonathan Carr, whose death sentences for a quadruple homicide were vacated by the state Supreme Court in July."

The following sentence of this article unfortunately departs from good journalism to use one side's talking points in describing the current Kansas Supreme Court selection system.  "Brownback has long sought more power to directly appoint justices rather than use a longstanding merit system in which a committee comprised of lawyers and members of the public send up suggestions. The system was changed during his administration to give him more power over appointments to the Kansas Court of Appeals, but it takes a constitutional amendment to give him similar authority to appoint justices to the Kansas Supreme Court."

Where is the evidence that the current Kansas system produces more "merit" in the judiciary than the senate confirmation system advocated by Brownback, me and the Framers of the US Constitution (which has had a senate confirmation system for centuries)?  Responsible advocates of that system have stopped calling it "merit selection" because that phrase is just one interest group's propaganda. See pp. 760-62 of the article linked here.

And why describe the committee as "comprised of lawyers and members of the public", which sounds so reasonable by hiding the key issue of who selects the committee?  Why not more accurately explain that the committee is comprised of 5 lawyers selected by their fellow lawyers (the bar) and four non-lawyers selected by the governor?  Having the lawyers selected in such an undemocratic way is the controversial part of the current system but you'd never know that from this article.

Also, the article is simply wrong in saying the committee "send[s] up suggestions."  They are not "suggestions."  They are requirements.  The governor must pick one of the committee's 3 favorites.
The committee (actually "commission") is very powerful and that's why the undemocratic selection of it is so troubling.  But you'd never know that from this article.  Nor would you know that Kansas is the only state that it allows its bar so much power in picking its commission.

More about Kansas Supreme Court selection here and here

Today's Radio Discussion of Kansas Supreme Court Selection

Today Kansas City Public Radio says "Gov. Brownback's Selection Of Stegall Stirs Debate Over Judge Selection Process" and "A recent change in Kansas law has re-ignited the debate on how judges are selected to the bench. In this edition of Up to Date, Steve Kraske examines the methods for seating judges, and who should hold the final say in how they are chosen.
Radio discussion guests:
Stephen Ware is a Professor of Law at the University of Kansas.
Matthew Menendez is counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law."

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.