Selecting lawmakers is important, says Kansas University Law Professor Stephen J. Ware, and that’s why Kansans should care about the method of judicial selection in Kansas.
Ware spoke to a meeting of the Wichita Pachyderm Club on Friday about the method of judicial selection in Kansas. His paper on this topic is Selection to the Kansas Supreme Court, which is published by the Federalist Society for Law and Public Policy Studies.
“Judges are lawmakers too. Judges make law,” Ware told the audience. While the legislature passes laws and judges apply those laws in the cases that come before them, it’s more complicated than that because of the common law, Ware explained. While there has been a growth of legislation, statutes, and administrative agencies, many important areas are still governed by common law, and it’s judges that make this common law.
While the common law is generally noncontroversial, Ware said that much of the lawmaking that judges do is “predictably political in its dividing lines.” Conservative judges and liberal judges predictably decide differently on similar cases. So it is important to our body of law, Ware said, whether the judges who make that law are conservative or liberal. Importantly, most lawmaking by judges takes place in state courts, not federal courts.
In a democracy, lawmakers should be selected democratically, Ware said, and judges are part of the lawmaking process. But democratic selection of judges is a controversial topic with many Kansas lawyers. The members of the Kansas Supreme Court — the final word on law in Kansas — are selected in a very undemocratic way, Ware told the audience.
In Kansas, there is a nominating commission that accepts applications for open positions on either the Kansas Supreme Court or the Kansas Court of Appeals. In secret, the commission deliberates and votes to send three finalists to the governor. The governor must select one of those three to become a new member of the court.
Therefore, the members of the commission exercise great power compared to average citizens, Ware explained. The nine-member commission has four members who are selected by the governor, which Ware said is a democratic process, as the governor is elected by the people. But the other five members — which constitute a majority of the commission — are selected by the 9,000 members of the Kansas bar (the lawyers licensed to practice law in Kansas).
Ware said this is an inequality that goes against the “one person, one vote” principle of democracies. The power of a vote of a member of the bar is “infinitely more powerful” than the votes of non-lawyers.
When comparing the method of judicial selection in Kansas to other states, Ware said that “Kansas is the only state that gives its bar the power to select the majority of its supreme court nominating commission.”
There are three basic ways that states use to select their Supreme Court members. The “Missouri Plan” makes use of a nominating commission, where the governor must select one of the commission’s recommendations. Kansas uses a version of the Missouri plan.
A second method is similar to the way United States federal court judges are selected, where the governor makes a nomination that is then confirmed by the state Senate or other legislative body.
A third method is elections. Ware distinguished between contestable elections — where there are two or more candidates running against each other — and retention elections, where the question is simply should a serving judge be retained in office. Supreme Court judges in Kansas to have to stand for retention elections. In Kansas, as is typical around the country, no serving judge has ever failed to win a retention election.
Ware gave these reasons for reform: First, basic democracy, the one person, one vote principle. The secrecy of the nominating commission is troubling, too.
As to options for reform, one measure would be to reduce or eliminate the number of nominating commission members who are selected by the bar. Commission members might be selected by the governor and legislature, for example. This is a more democratic method as the governor and legislators are elected by the people.
Another way would be to add senate confirmation to the existing process, or to do away with the nominating commission and have senate confirmation of the governor’s nominee. Finally, we could have contestable elections.
Any change to the method of judicial selection would require an amendment to the Kansas Constitution. That requires a two-thirds majority vote in both the Kansas Senate and House of Representatives, and then a majority vote of the people.
Responding to questions, Ware said that in states that use senate confirmation of a governor’s nominee, the nominee is nearly always confirmed with very few dissenting votes. He said that this is evidence of governors getting a feel in advance for potential nominees’ prospects for confirmation and using that to help select a nominee, rather than senators simply rolling over and acceding to whomever a governor nominates.