Lawmakers may change how Kansas Supreme Court justices are picked as redistricting case looms

  • Oops!
    Something went wrong.
    Please try again later.
·6 min read
In this article:
  • Oops!
    Something went wrong.
    Please try again later.

Lawmakers are considering changes to a six-decade-old system of selecting judges to the Kansas Supreme Court, at a time when the high court is on the cusp of hearing a landmark challenge to a set of GOP-authored congressional maps.

Republican legislators insist the renewed push to end so-called merit selection of judges is unrelated to the redistricting lawsuits percolating through the court system, which are all-but-certain to eventually arrive at the supreme court.

Instead, they argue the move is needed to ensure Kansans have a voice in selecting jurists on the state's highest court, either directly or via members of the Kansas Senate.

"It needs to be looked at regardless ... of what is happening today or yesterday or might happen tomorrow," Sen. Kellie Warren, R-Leawood, chair of the Senate Judiciary Committee, told reporters. "The people of Kansas want to be ensured that the equal, third branch of government, the judiciary, is of and by and for the people."

More: Kansas pulls COVID vaccine ads from TV after lawmakers object to calling them safe and effective

But supporters of the current system, including many legislators, lawyers and the Kansas Bar Association, argue officials shouldn't attempt to fix what isn't broken — potentially letting politics take over the court system.

"I think Kansans, personally, have been pretty well served by the selections that have been made," said Sen. David Haley, D-Kansas City, Kan.

Kansas judicial selection dates back to 1950s corruption

Kansas Supreme Court Justice Evelyn Wilson was the first appointment to the state’s highest court by Gov. Laura Kelly. Kansas lawmakers may change how high court justices are chosen.
Kansas Supreme Court Justice Evelyn Wilson was the first appointment to the state’s highest court by Gov. Laura Kelly. Kansas lawmakers may change how high court justices are chosen.

Kansas' current system for selecting justices to the Kansas Court of Appeals and Kansas Supreme Court dates back to the 1950s in the wake of the so-called "Triple Play" scandal of 1956.

When then-Gov. Fred Hall lost re-election, he abruptly resigned his position. At the same time, the chief justice of the state supreme court, a friend of Hall's, also stepped down and the acting governor appointed Hall to the vacant seat on the high court.

Public outcry prompted voters to approve a constitutional amendment two years later that enacted the current system.

A screening panel, comprised of attorneys and non-lawyers from each of the state's four congressional districts, vets applicants for positions and selects a slate of approved options. The governor then picks the appointment from those choices, though court of appeals justices also must be approved by the Kansas Senate.

More: Kansas lawmakers seek solution to confusion over delta-8 and medical marijuana

A year after a judge is appointed, an appellate court justice must stand for retention in the next general election and then similar votes are held at the end of each six year term.

But barring gross misconduct, judges are rarely not retained. Even a concerted effort by conservatives to boot a handful of state supreme court justices in 2016 fell short, despite ample spending by outside groups.

In recent years, more Democratic governors have tapped justices to serve on the Kansas Supreme Court, creating a liberal majority that has frustrated Republican legislators on everything from mandating school funding increases to ruling the Kansas Constitution protects the right to an abortion.

"This ruling was made possible by a flawed system which is rigged to allow justices with radical judicial philosophies to be appointed to the Supreme Court without the check of Senate confirmation," Senate President Ty Masterson, R-Andover, said in written testimony on the matter.

Republicans, critics tout two constitutional amendments for change

Kansas legislators are considering changing how Kansas Supreme Court judges will be picked in the future. They're doing so at a time the court is set to hear a major redistricting case.
Kansas legislators are considering changing how Kansas Supreme Court judges will be picked in the future. They're doing so at a time the court is set to hear a major redistricting case.

Republicans are pushing two distinct constitutional amendment, both of which would effectively end the merit selection process.

One would move to direct election of judges, something only eight states do for their high courts, according to the Brennan Center for Justice. The other would mirror the process used for U.S. Supreme Court nominations, where the governor would select a justice and they would undergo Senate confirmation.

Proponents for change argue Kansas is outside the bounds of what is done even in other states that use a merit selection system, arguing no one else allows the bar association to pick a majority of nominating commission members.

"We need to ask ourselves: Shouldn’t the system for selecting those justices be democratic, rather than privileging one small subset of the population?" Stephen Ware, a professor at the University of Kansas School of Law, told the Senate Judiciary Committee during a hearing on the matter Friday.

Some specifically cited the series of controversial rulings in recent years, most notably the 2019 abortion decision in Hodes & Nauser v. Schmidt.

More: Mike Pompeo calls Vladimir Putin a dictator, blames Biden for Ukraine war, but China 'greater threat'

"We believe this has led to gross injustice for the people of Kansas," said Brittany Jones, director of policy and engagement for Kansas Family Voice, a conservative group that advocates on social policies.

But proponents of the current system argue the potential changes would allow politics to bleed into the courtroom in ways that would adversely bias justices as they examine issues of law.

Jim Robinson, a lobbyist representing the Kansas Bar Association, said even making the judges subject to Senate confirmation wouldn't change this. He pointed to the example of New Jersey, where Democratic legislators held up judicial appointees during the tenure of Republican Gov. Chris Christie.

Without proper protections against political meddling, he added, Oliver Brown and other families wouldn't have been successful in challenging segregation in Topeka's public school system in Brown v. Board of Education.

"If our judges are simply expected to adhere to what the majority wants, what happens to minority rights," he said. "What happens to those? And how does a judge square public opinion with the obligation to uphold the Constitution and fairly apply the law."

Amendment would appear on August ballot; critics say process is ‘rushed’

It is not the first time that Republicans have pushed similar changes. In 2005, a constitutional amendment to end merit selection was also proposed but did not advance.

A path forward is clearer this time around, as the issue is a stated priority for Senate leaders.

If approved by both chambers by a two-thirds majority, the resolution would appear on the August partisan primary ballot. Incidentally, it would be considered alongside a constitutional amendment that is proposed by anti-abortion advocates to effectively undo the 2019 decision.

Critics argued things were moving too fast and that a decision on the matter should not be made during the primary election, which usually has lower turnout than the November general.

"This feels rushed and I think it would be problematic to have it on the ballot in August." said Mike Fleming, president of the Kansas Trial Lawyers Association.

More: Is a food sales tax cut compromise in the works? Kansans 'need to be contacting their legislators'

But as the high court is expected to eventually hear the redistricting challenge, some proponents argued that case was a reason change was needed.

Joshua Ney, an attorney with the Kriegshauser Ney Law Group, said the fact that critics of the Congressional map sought out a challenge in state court, rather than the federal system, showed they felt they had a better chance before the Kansas Supreme Court.

That fact alone, he said, was telling.

"That strategy, I think, reflects what they expect to find in our courts," he said. "And I think that this body and the full Senate and the legislature should drill into whether there is a causal connection between the types of persons and the class that is selecting the people that nominate these potential judges, and whether that would be changed if the full state got to weigh in."

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.

This article originally appeared on Topeka Capital-Journal: Kansas legislators consider changing Supreme Court nominating process