Kansas lawyers are ready to relinquish some control over picking judges in hopes the process won’t be turned over to governors who might stack the courts with political soulmates.
With the Legislature ready to take up judicial selection as early as next week, the Kansas Bar Association is suggesting that lawmakers rework the way upper-level judges are nominated instead of revamping the entire system and letting Gov. Sam Brownback name judges who are confirmed by the Senate.
“Let’s not throw the baby out with the bathwater,” bar association president Lee Smithyman of Overland Park said.
The method for picking upper-level judges has been controversial in Kansas because it depends on a nominating commission that has lawyers as a majority of its members.
State appeals court judges are screened by a nine-member nominating commission that includes five lawyers, plus four non-attorneys named by the governor.
The governor chooses from a list of three nominees selected by the commission. Nominees for the state Supreme Court are chosen the same way, but that procedure is harder to change because it’s set by the state constitution and would require a public vote along with support of two-thirds of the Legislature.
Kansas is the only state that gives lawyers a majority control over the selection of judges, experts say.
Critics say the selection process is fundamentally undemocratic because it vests power in attorneys who are not accountable to the public.
Republican Gov. Sam Brownback’s administration has pushed for a federal model where the chief executive — in this case the governor — appoints judges with Senate confirmation. He is expected to push for a similar measure this year, possibly with a constitutional amendment.
Supporters of the current system say it protects the judicial branch from political gamesmanship, best illustrated in 1957 when a former Kansas governor maneuvered to get himself appointed to the Supreme Court.
They say that efforts to change the selection process are driven by an ideological agenda and Brownback’s desire to leave his imprint on the state. Brownback allies who oppose abortion want to change the system, anticipating the governor could choose judges more sympathetic to his views on that issue. They say Senate confirmation would reveal a prospective judge’s views about abortion.
The bar association recently passed a resolution supporting the current system, “independent” of how the nominating panel is selected. And late Tuesday afternoon, the bar association endorsed a plan that would expand the nominating commission to 15 members from nine.
The bar calls it the “4-5-6” plan. Four members of the commission would be elected by attorneys, one from each congressional district. Five would be appointed by the governor. Six would be appointed by the Legislature. The legislative appointments would be divided among the Senate president, the House speaker, the House minority leader and the Senate minority leader.
That plan would be applied to the commissions that recommend judges of the Court of Appeals and the state Supreme Court. It would be offered as a constitutional amendment.
“We believe (the plan) will eliminate any argument or criticism that attorneys have any control over this,” Smithyman said.
Smithyman said turning the selection of upper-level judges to the governor is not the best system.
“Obviously, only those who are well known to the governor have an opportunity to be appellate judges,” Smithyman said.
Rep. John Rubin, a Shawnee Republican, has been one of the fiercest critics of the existing system. He has proposed something similar to what the bar association is suggesting.
He favors a nominating commission picked by the governor, the House speaker and the Senate president. Ultimately, the governor would pick a candidate who would need to be confirmed by the Senate. Under Rubin’s plan, a majority of the commission could not be lawyers.
Rubin said he hopes to get the bar association to work with him on his legislation.
Other lawmakers, including Rep. Lance Kinzer, favor the federal model.
Kinzer, an Olathe Republican and chairman of the House Judiciary Committee, thinks a consensus is developing for changing the current system.
“I think more and more folks are recognizing that there are imbalances in the current system,” Kinzer said. “I think it’s fairly likely that the system we have today will be reformed in some fashion.”