Rep. Lance Kinzer introduced legislation last week that would change the way Kansas Supreme Court and Court of Appeals justices are appointed.
According to a paper written by Stephen Ware, a University of Kansas School of Law professor, Kansas is the only state in the nation in which the state bar association has majority control over justice nominations.
Kinzer and 23 co-sponsors of the bill, HB 2799, want that to change.
The nine-member Supreme Court Nominating Commission, of which five members are attorneys selected by the state bar association, submit a list of three nominees to the governor, who then appoints one of the nominees.
Ware said Wednesday that Kansas’ system creates two problems. A small interest group controls who gets nominated, and the nominations are done secretly.
“When you let one narrow group have a lot of power, that’s bad enough, but when they’re exercising the power behind closed doors that’s worse,” Ware said.
In Kinzer’s proposal: • Instead of the governor having sole discretion in appointing all nine members of the nominating commission, three each would be appointed by the governor, senate president and speaker of the house.
• The new nominating commission still would submit three names to the governor, who can choose one of the three or make her own appointment.
• The Senate then would have to approve the governor’s choice.
“Proponents of the current system contend that it heightens confidence in the judiciary by isolating it from political influence,” Kinzer said in a statement. “Unfortunately, in practice this isolation serves to exacerbate public frustration with and alienation from a process they see as insular and elitist.
“Placing clear responsibility for judicial selection in the hands of politically accountable elected officials will provide an appropriate mechanism by which the people may at least indirectly participate in the process of judicial selection.”
Defenders of the current system, Ware said, contend that justice nominations are based on merit and not on politics. Ware said that argument is a “myth.” “I don’t think the facts back it up,” he said.
In Ware’s paper, which was published in November, he writes that in the last 20 years, nine of the last 11 state Supreme Court justices appointed had the same political affiliation as the governor who appointed them.
Ware also wrote that in the last two decades, all 22 of the appointees to the nominating commission were members of the same political party as the appointing governor.
On the opposite side of Kansas’ system, Ware said 22 states allow residents to elect judges, but the argument against that system is ordinary people who may not know enough about the judges are electing them.
He said 12 states have a similar system to what Kinzer is proposing, where an appointment is approved by a governing body like a state senate.
“There are good arguments for having the experts, the elite, heavily involved having power and there are good arguments for having the citizens, the populists having power,” he said. “I think the way you get the best of both worlds is by not going to either extreme and by going towards the middle.”
Ware’s paper can be found on the “Issues” page of Kinzer’s Web site, www.lancekinzer.com, toward the bottom under “Judicial Selection.”