Kansas University law professor Stephen J. Ware has extensively researched and written on the method of judicial selection in the United States. His recent paper The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court again lets us know that in Kansas, a select group of lawyers has tremendous control over the nominating process. It’s a process that desperately needs reform, despite the effort that Kansas lawyers spend defending their elite privileges and powers in this regard.
The first part of the paper is captioned “Kansas is extreme — no other state gives the bar as much power.” In detail, Ware describes the three basic ways that the states select supreme court justices. Kansas is unique among the states: “In sum, Kansas is the only state that allows the bar to select a majority of ‘a nominating commission that has the power to ensure that one of its initial nominees becomes a justice.’”
This system gives lawyers a great deal of power in selecting supreme court justices: “In this extremely undemocratic system, a lawyer’s vote is not only worth more than any other citizen’s vote; it is worth over 200 times more.”
As we might imagine, lawyers vigorously defend this system using a variety of arguments. Here’s one:
The problem with bar-power extremism in judicial selection is that it rests on a one-sided view of the role of a judge. It emphasizes the judge’s role as legal technician at the expense of the judge’s role as lawmaker. Of course, judging does involve the narrow, lawyerly task of applying to the facts of a case the law made by someone other than the judge (e.g., a legislature). But judging also involves the exercise of discretion. Within the bounds of this discretion, the judge makes law.
Ware continues: “Let us frankly acknowledge that judges are not merely technicians; they are also lawmakers.” This is particularly important when considering the selection of supreme court justices, as they have the most discretion in making law.
Based on analysis of political contributions of the lawyer members of the nominating commission, they’re more liberal than the average Kansan. That’s in spite of the fact that more are registered as Republicans: “Interestingly, of the twenty-two lawyer-commissioners studied, seven were registered to vote as Democrats, while twelve were registered as Republicans. In other words, the Nominating Commission’s Democratic lawyers were more likely than its Republican lawyers to contribute to their party’s federal candidates. And, in fact, some of the Republican lawyers made more contributions to the other party’s federal candidates, while none of the Democratic lawyers did this.”
In summary, Ware writes:
But however one assesses this issue, one’s assessment does not alter the conclusion that the process lacks democratic legitimacy. Giving a member of the bar far more power in selecting the supreme court than her fellow citizens have is unacceptable in a democracy, regardless of whether this inequality results in a more liberal or conservative court than would result from a more democratic selection process.
What about the retention elections that Kansas supreme court justices must face? None have ever lost. Across the country, judges are retained 98.9% of the time.
We need reform. Just read the conclusion, where Ware writes: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country.”
You can read the entire paper at The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court. Previous coverage of this issue is at Kansas must change its judicial selection method and Kansas has the appearance, without the reality, of judicial accountability.