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.

NY Times Depicts Kansas Battle as Judicial Independence vs. Politicized Courts

Predictably-progressive oversimplifications by the Times include "In the Kansas system, judges are appointed by the governor," The Times fails to mention the bar's extraordinarily large role in selecting Kansas Supreme Court justices and the politicization that produces.

British Judicial Selection

“Searching for Constitutional Meaning in InstitutionalDesign: The Debate Over Judicial Appointments in the United Kingdom,” by Northwestern University Law Professor Erin F. Delaney. 

The abstract:    

The United Kingdom is undergoing a period of dramatic constitutional change. A spate of reforms ushered in by the Blair government at the turn of the twenty-first century challenged conventional notions of British governance and constitutional structure. In the shadow of these changes, one new and bedeviling institutional task is to reconcile an independent judicial branch, growing in power, with a system of parliamentary sovereignty. This article will analyze the debate over judicial appointments in order to shed light on the position of the modern British judiciary, and the new U.K. Supreme Court in particular, within the British constitutional system. Questions of institutional design expose deep divisions over the perceived extent of judicial power, the relationship of the judiciary to Parliament, and the constitutional justifications for diversity on the bench. Although a weak consensus was achieved in the Crime & Courts Act 2013, stability in the appointments regime is likely temporary. The contested nature of the modern British constitutional system will ensure ongoing debate.

In Britain, Delaney writes, "safeguards protecting judges’ impartiality were developed in parallel with the doctrine of parliamentary sovereignty, so that an 'independent judiciary' was understood as
comprising independent individual judges, rather than seen as a separate and independent
branch. (Indeed, the highest judicial body was a committee of the upper house of
parliament, and the Lord Chancellor, empowered to appoint judges, was at once head of the
judiciary, a member of the Prime Minister’s Cabinet, and the presiding officer of the House
of Lords.)"

Delaney writes “the Constitutional Reform Act (2005) [CRA] was heralded as a ‘milestone’ in the separation of powers and a ‘major step forward’ in judicial independence. It included three major changes. First, it created the UK Supreme Court, which, in its own building on Parliament Square, provided a physical demonstration of the new separation between the legislative and judicial branches. To ensure stability, the Lords of Appeal in Ordinary—the Law Lords—were retitled as the initial twelve Supreme Court Justices. Second, the Act dramatically altered the role of the Lord Chancellor, removing his legislative and judicial duties. And, finally, the CRA included various new appointments mechanisms designed to cabin the Executive’s discretion, including the creation of the Judicial Appointments Commission for England and Wales and a selection commission for Supreme Court appointments.”

More on the Commission

British Perspective on Political Accountability of Judges

"Is There a Case for Greater Legislative Involvement in the Judicial Appointments Process?"

The Study of Parliament Group Paper No. 3, London by Alexander Horne.

It's abstract says "the UK’s top court is more frequently determining essentially socio-political questions. In the light of this expanding judicial role, this paper asks whether new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but not limited to, the UK Supreme Court)."

"The research examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence."

Judicial Independence

The political science literature on judicial selection includes lots of data and various perspectives not sufficiently voiced among lawyers and in the general public.  A good example is this article by Scott E. Graves, National Center for State Courts, Robert M. Howard, Georgia State University, and Pamela C. Corley, Vanderbilt University.

It seems to provide further empirical support for the proposition that judicial independence is determined primarily by the length of a judge's term.  This proposition goes back at least as far the Federalist Papers in which Hamilton (quoted  this article) says "Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to [the courts'] necessary independence."