Kansas University law professor Stephen J. Ware has researched and written extensively about the processes that states use to select justices to their high courts. Kansas, as it turns out, is at the extreme end of the spectrum of the methods the states use. My post Kansas is at the undemocratic extreme in judicial selection describes Ware’s recent research on this topic. The title of the post should give a hint as to the nature of Kansas’ system, which gives our state’s lawyers outsize influence in the process. Here’s Ware’s summary:
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.
Now a legal writer has made an argument that our state’s process may be unconstitutional. The article “Does the Kansas Supreme Court Selection Process Violate the One Person, One Vote Doctrine?” by Joshua Ney, published in the Fall 2009 Washburn Law Journal has this as a conclusion:
The 1958 Amendment to the Kansas Constitution granting the state bar the power to elect a majority of the Nominating Commission has since come into conflict with the requirements of the one person, one vote doctrine. The notable exceptions to the one person, one vote doctrine do not apply to the bar election of Nominating Commission members. Kansas’s use of a nominating commission does not per se create a constitutional conflict. Rather, the conflict lies in electing its Nominating Commission in a manner that gives one citizen’s vote substantially more weight than another citizen’s vote. Because Kansas currently grants the state bar over two-hundred times more voting power than non-lawyer citizens in the election of members to the Nominating Commission, the state’s system stands in violation of the one person, one vote doctrine. Moreover, any state that currently gives its bar the power to elect or appoint members of the state judicial nominating commission is vulnerable to having its supreme court selection process struck down as a violation of the one person, one vote doctrine. Kansas should immediately adopt one of the many constitutional alternatives to the current system or risk a potentially successful challenge to the system in court.
Ney’s quote from William “Boss” Tweed, political boss of Tammany Hall, summarizes our problem accurately and compactly: “I don’t care who does the electing so long as I do the nominating.”
Citizens who want to see reform in the way Kansas selects justices: what should they do? For now, my best advice is to contact their Kansas representatives and senators. Reform requires an amendment to the Kansas Constitution. That requires a two-thirds vote in both the House and the Senate, and then a majority vote of the people. The governor has no direct role in the process, except to help set the tone of the debate and apply persuasion to legislators.