Bob Sigman: Kansans are wisely opposed to abandoning merit selection

The drafters of the Kansas Constitution did not want their handiwork disturbed without compelling purpose.

First, attaching an amendment requires at least a two-thirds majority of both chambers of the Legislature. That is most always problematic. Ratification requires a majority of Kansas voters.

One constitutional change, however, was a slam dunk made after a political scandal. In 1957 Kansans were shocked by an episode of skullduggery that has become known as the “triple play.”

It is pertinent to recall this travesty of justice now because of legislation pending in the Kansas Legislature. More about the legislation later.

The triple play was pulled off after the chief justice of the Kansas Supreme Court decided to retire because of ill health. But there was a problem. It was only days before a new governor, a Democrat, would take office. The chief justice, a Republican who was elected in a partisan election, wanted to be replaced by a Republican.

So a deal was worked out.

The chief justice resigned a few days before the Democrat was to be sworn in. In short order, the incumbent governor, a lame duck Republican who had lost the 1956 GOP primary, unexpectedly resigned. The Republican lieutenant governor who briefly took over as governor promptly appointed the ex-governor to the Supreme Court.

Infuriated Kansans discarded partisan elections quickly. In an easily ratified 1958 constitutional amendment, they adopted the highly regarded merit selection plan.

Now that plan is under attack. Republican Gov. Sam Brownback and many conservative members of the Legislature complain about Supreme Court decisions that have required the state to increase appropriations for education. They contend lawyers have too much influence in the selection process and that too many justices are “activists.”

They want change; two proposed constitutional amendments currently in the House would abolish the merit plan.

One calls for justices to be elected in partisan elections. The other would establish the so-called federal system that authorizes the governor to appoint justices, with confirmation by the state Senate.

But some legislators believe the two-thirds vote is too high a bar for either measure to clear the House. A loose coalition of Democrats and moderate Republicans may have enough votes to block them.

A judicial change would run counter to the public sentiment of Kansans. Justice at Stake, an advocacy group for merit selection, found in a recent poll of likely voters that 55 percent oppose partisan judicial elections and 76 percent oppose the federal system.

Defenders of merit selection are speaking out, including Chief Justice Lawton Nuss of the Kansas Supreme Court.

“In Kansas,” he wrote in recent commentary, “merit selection is a healthy competition that compares side by side the qualifications of numerous applicants. Their names and qualifications are made public, and the selection process itself is open for Kansans to see. Politics and its ever-increasing money play no role.”

Under a recently enacted law that gives Brownback appointive authority to name members of the Kansas Court of Appeals, Nuss said, only the name of the governor’s appointee is disclosed when the name is sent to the state Senate for confirmation.

“Accordingly,” he said, “this model gives neither the people of Kansas — nor even the Senate — an opportunity to compare the appointee’s qualifications to those of anyone else.”

This story was originally published March 17, 2015 at 10:35 AM with the headline "Bob Sigman: Kansans are wisely opposed to abandoning merit selection."