Kansas Supreme Court Selection
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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. The bar consequently may have more control over the judiciary in Kansas than in any other state.
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Kansas Supreme Court Selection
- 1. Selection to the Kansas Supreme Court in National Perspective Stephen J. Ware Professor of Law University of Kansas
- 2. • National perspective • Many years of research and writing
- 3. 1) Applications to Supreme Court Nominating Commission 2) Commission picks 3 finalists in secret vote 3) Governor must pick 1 of the 3 Kansas Supreme Court Current Selection Process
- 4. Importance of the Commission as Gatekeeper to the Kansas Supreme Court
- 5. “I don’t care who does the electing so long as I do the nominating.” William “Boss” Tweed, political boss of Tammany Hall, quoted in J. Jackson Barlow et al. The New Federalist Papers 338 (1988).
- 6. Kansas is the only state in which the bar selects a majority of the supreme court nominating commission.
- 7. 2,900,000 people 10,000 people 4 5 commissioners commissioners Governor SCT Nom’n Comm’n
- 8. Judicial Selection in the States • Missouri Plan (comm’n + governor) • Governor nominates and senate confirms • Contestable judicial elections (distinguish from retention elections)
- 9. Power in Judicial Selection System Power Missouri Plan Governor and Bar Senate Confirmation Governor and Senate Contestable Elections Voters
- 10. Selection of State Sup. Court Justices Selection Method States MO Plan, Comm’n majority by bar 1 MO Plan, near-majority by bar 8 MO Plan, little or no role for bar 4 Legislative appointment 2 Governor’s nominee confirmed by Senate or other publicly-elected body 13 Non-partisan election 15 Partisan election 7
- 11. Bar Control of Supreme Court Selection High Bar Control l l l l l l Low Bar Control l MO Plan Comm’n majority selected by bar MO Plan Comm’n near majority selected by bar Nom’n Comm’n w/ no or little role for bar Legislative Appointment Governor’s Nominee Confirmed Non-Partisan Elections Partisan Elections Kansas Alaska Indiana Iowa Missouri Oklahoma Nebraska South Dakota Wyoming Arizona Colorado Florida Tennessee South Carolina Virginia California Connecticut Delaware Hawaii Maine Maryland Massachusetts New Hampshire New Jersey New York Rhode Island Utah Vermont Arkansas Georgia Idaho Kentucky Michigan Minnesota Mississippi Montana Nevada North Carolina North Dakota Ohio Oregon Washington Wisconsin Alabama Illinois Louisiana New Mexico Pennsylvania Texas West Virginia
- 12. A Quick History • Framers • Jacksonian Democracy • Progressive Era’s “Merit Selection”
- 14. Contestable Elections • Pros: democratic accountability of judicial discretion, performance accountability, judicial independence from other branches. • Cons: Threat to clear rules of law, unstable law, fundraising, nasty campaigns, ignorant voters.
- 15. Senate Confirmation • Pros: indirect democratic accountability of judicial discretion, elected officials know more than voters, no campaigns or fundraising. • Cons: Judicial dependence on other branches. Cronyism.
- 16. Missouri Plan • Pros: commissions (esp. lawyer members) know a lot, some judicial independence from other branches and from voters, limited campaigns and fundraising. • Cons: Lack of democratic accountability, disproportionate bar influence, cronyism.
- 17. Brownback signs legislation to reform judicial selection By Tim Carpenter, Topeka Cap. J., Mar. 27, 2013 Describing HB 2019 as the “adoption of the federal model of executive appointment and Senate confirmation.… This was the first bill to be signed by Brownback during the 2013 session.”
- 18. “The governor said the House and Senate should continue to work on the state constitutional amendment necessary to similarly remove the nominating commission, with a majority of members elected by Kansas lawyers, from the process of appointments to the Kansas Supreme Court.”
- 19. Stephen J. Ware Professor of Law University of Kansas ware@ku.edu 785-864-9209