The upcoming retention election for Kansas Supreme Court Justice Carol Beier provides an opportunity to examine the judicial selection process in Kansas.
In the Kansas Liberty news report Republicans won’t campaign against Justice Beier in 2010, University of Kansas School of Law professor Stephen Ware explains the perverse dynamics of Kansas judicial retention elections:
“With no opposing candidate, there’s no one with an incentive to raise money for a challenge and to advocate change,” Ware said. “So voters don’t see the sort of discussion of the issues that would spark an interest in the judiciary. This lack of interest by the citizenry allows lawyers to decide the liberal or conservative direction of the courts because lawyers play the dominant role in initially selecting justices and then those justices stay on the court until retirement because they face no challenge from meaningful elections.”
The problem is one of perception. The judicial retention elections appear to give citizens a voice. The state holds elections, after all. But as Professor Ware explains, the choice is illusory. More about this and Ware is in my post Kansas has the appearance, without the reality, of judicial accountability.
Ware’s 2007 research on this matter, published by the Federalist Society, may be read at Selection to the Kansas Supreme Court. The opening sentence of this report starkly states the uniqueness of the process in Kansas: “Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices.”