Overhaul of Kansas Supreme Court justice selection pits will of the people vs. nonpartisan board

TOPEKA — Debate over potential constitutional amendments to overhaul the Kansas Supreme Court judicial selection process Friday placed competing desires to ensure judges reflect the mindset of Kansans and one to keep the state’s highest court insulated from political opinion.

The amendments, proposed by Senate President Ty Masterson, would provide two alternatives to the current, merit-based judicial selection process added to the constitution in 1958. This nine-member panel nominates candidates for Supreme Court justices and sends them to the governor, who appoints one.

After a new justice serves one year on the court, he or she must stand for a retention vote in the next general election to remain in the position. If retained, the justice serves a six-year term.

Masterson proposed instituting the federal model, in which the Senate would hold a confirmation hearing, or introducing Supreme Court justices into statewide elections. Supporters of the measure said this would create a stronger, better-respected judiciary.

“The notion that only lawyers are equipped with the necessary skills and knowledge to select justices is nonsense and the height of arrogance and elitism,” said Alan Cobb, president and CEO of the Kansas Chamber of Commerce and an attorney. “Doctors do not select the Board of Healing Arts; accountants do not select the members of the Board of Accountancy and university professors do not select the Board of Regents.”

The idea of the bill, currently in the Senate Judiciary Committee, was proposed by Attorney General Derek Schmidt and raised several concerns about the potential for politics and public opinion to further infiltrate the judicial branch. If passed, the amendments would be put on the August ballot, along with the Value Them Both amendment.

Jim Robinson, of the Kansas Bar Association, said the immediacy of this measure on a ballot was alarming given the complex nature of the judicial system and how it functions. He said the civic education effort required to ensure Kansans understand what they are voting on is extreme.

“This is just going to look like a really geeky election,” Robinsons said. “There’s going to be civics education that will play out, which would be a good thing for the edification of the voters of the state of Kansas, but I think that it’s very difficult in the current time frame.”

Kansas has flipped systems several times before the current approach with elections for the Supreme Court, both partisan and nonpartisan, but neither fared particularly well, Robinson said.

The merit-based system was a response to the triple play scandal, when, after defeat in the 1956 election and the resignation of a Supreme Court justice, incumbent Gov. Fred Hall resigned from his post and had his former lieutenant governor appoint him as the replacement justice. While legal at the time, the sequence of events led to the resolution of this amendment.

In 2019, Masterson championed a failed resolution to switch the method to a model where the governor’s appointments would be subject to Senate confirmation, similar to how the process works for the Court of Appeals.

In 2016, the Kansas House voted in favor of a constitutional amendment to similarly overhaul the process, but the proposal fell short of the necessary two-thirds supermajority.

In 2013, Gov. Sam Brownback approved a measure eliminating a nominating commission for the Court of Appeals, although this was later reversed.

Opponents and legislators also expressed concern a Senate confirmation process could significantly slow down the process of selection, especially if the Legislature is not in session.

“It’s a seven-member court and so with any delays with appointments or vacancies that may come about when the Legislature is not in session, which leaves additional months before that seat is filled so that we can have that full court deciding decisions,” said Diane Bellquist, with the Kansas Association of Defense Counsel. “If there’s a candidate that goes before the Senate and there is protracted disagreement, that would only potentially add to the timeline as far as filling that seat.”

A Partisan Court

Those in favor of the amendments told legislators there was a clear negative causal relationship between the method of selection and legal decisions affecting state policy.

Brittany Jones, of Kansas Family Voice, previously Family Policy Alliance of Kansas, said the court’s decision in the Hodes & Nauser case was an example of how the current system allows justices whose decisions run contrary to that of the opinion of most Kansans into the court.

“They have relied upon some very liberal papers that don’t truly represent the history and the understanding and the culture of Kansas,” Jones said. “I believe that’s shocking to most Kansans.”

Josh Nye, an attorney, pointed to activist strategies of preferring state court litigation over the federal court as a sign that the selection process has allowed a potential partisan lean in the court.

Sen. Mike Thompson, a Shawnee Republican, said the Senate would do just as good a job vetting and clearing a candidate as the nominating committee.

“We just had an appellate court nominee that was of a different political party than the body and we approved her,” Thompson said. “How is that process any different from the nominating commission except for the fact that we are accountable to our constituents, and they sent us here to do a good job and to deliberate and vet those types of nominees.”

Last session, the Senate rejected for the second time Gov. Laura Kelly’s nomination of Carl Folsom to the Court of Appeals.

Opponents of the measures countered that keeping politics out of the judicial branch completely was impossible, but the current system provided the most insulation. They said even if senators have confidence in the current body, there is no telling what the future may bring, and these changes leave lots of room for uncertainty.

Mike Fonkert, campaign director for Kansas Appleseed, said he did not see the court as acting in partisan fashion in recent decisions. 

“The reality is that the Kansas population has not been upset enough with any particular judges other than a few over the years to not retain them,” Fonkert said. “I think the opposite that it is actually an indication of the court ruling in an impartial way.”

Linda Weis, a non-attorney member of the nominating commission, said people misunderstand the hard work of the commission and the vetting process. 

“I may not be an attorney, but I know the law and I know when I vet people, the people are honest, the people have integrity and I will stand behind any of the people that we have presented for the Supreme Court,” Weis said.

More measured approach

Legislators, opponents and even some proponents seemed eager to ensure legislators did not go too far in amending the current system if they choose to do so.

Stephen Ware, a professor of law at the University of Kansas, supported modifying the Supreme Court judicial selection process but did not want an aggressive change, such as a partisan election. He said this was the most surefire way to create a left- or right-leaning court.

“I think you’d characterize it accurately as moving from one extreme to the other extreme, with the sort of happy medium in the middle being a Senate confirmation system like we have for the Court of Appeals and like many other states have for their highest courts,” Ware said.

According to the Brennan Center for Justice at New York University, in 26 states and D.C., the governor appoints judges from a list of candidates provided by a nominating commission. There are 14 states that select judges for the high court in contested nonpartisan elections, and eight states select justices in partisan elections.

Others said these amendments used an ax when the issue demands a scalpel. Sen. Marci Francisco, D-Lawrence and Sen. David Haley, D-Kansas City, said the proponent testimony offered more concrete evidence for changes to the nominating commission, and, if anything, warranted more time to consider other options.

“Wouldn’t making up a different hybrid of those that are selected to the nominating commission be preferred to entirely abolishing it?” Haley asked

New Mexico currently has a hybrid system including partisan elections.