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.
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.
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.”