Senate confirmation of judges is transparent and democratic

Kansas Gov. Laura Kelly’s nominee to the state Court of Appeals was recently rejected by the Kansas Senate. The Star Editorial Board endorsed Kelly’s criticism of the Republican Senate majority’s vote as “political games,” without criticizing the Democratic governor for choosing a nominee who had contributed to her election campaign.

Seeing how politics factor into policy decisions by both parties confirms that many people across the ideological spectrum seek judges who share their worldviews. And why shouldn’t they?

Asserting that judges should neutrally apply the law without regard to politics ignores the fact that judges inevitably influence the content of the law. Cases that reach appellate courts often require judges to interpret broad or ambiguous language in constitutions and statutes. In these cases, where reasonable people can disagree about the best interpretation of the law, reasonable judges frequently do disagree with one another, prompting some judges to dissent from the rulings of their colleagues.

Predictably, these disagreements often correlate with the ideology or worldview of the judges. Courts with more conservative judges tend to interpret constitutions and statutes more conservatively, while courts with more progressive judges tend to interpret constitutions and statutes more progressively. Appellate judges are even more free to rule as they choose in cases for which the legislature has not enacted any relevant statute, allowing judges to keep making the “common law,” as judges have done for centuries going back to England.

In short, our legal system has always required appellate judges to make the law, not just apply it. And more conservative judges tend to make the law more conservative while more progressive judges tend to make the law more progressive.

This realism does not mean judges are just “politicians in robes.” Judging has a professional side, especially at the trial level. But the political or lawmaking side of judging looms larger in the higher courts — where judges routinely make law to fill gaps in, or sometimes even reverse, prior law.

People of good faith disagree on whether they want judicial lawmaking done by conservative or progressive judges. But we should all agree that in our democratic society, these debates ought to be resolved in a democratic process with checks and balances, such as a state senate vote on a governor’s judicial nominee. And we should all value the openness of this process that allows citizens to hold their elected officials accountable.

Fortunately, the U.S. Constitution has always called for U.S. Senate confirmation of the president’s judicial nominees, and the Kansas Court of Appeals is selected similarly. In contrast, however, the supreme courts of Kansas, Missouri and a few other states are selected in an undemocratic process that lacks senate confirmation and concentrates power in the bar through an obscure commission that discourages open debate over judicial worldview.

No evidence shows the commission system — often called the “Missouri Plan” or, more tendentiously, “merit selection” — surpasses senate confirmation in selecting judges who meet the highest standards of ethics and excellence. While a state senator may object to a nominee on inappropriate grounds — such as some Kansas senators’ recent objection to a public defender representing a defendant accused of a reprehensible crime — commissioners may also make inappropriate objections. And senators are accountable to the people on Election Day, but the public has no means of accountability for bar members of a commission.

Nobody has a right to be a judge and plenty of good lawyers across the spectrum seek judgeships. Picking among them calls for transparency and democratic accountability, which are provided by senate confirmation.

This story was originally published June 12, 2020 at 5:00 AM with the headline "Senate confirmation of judges is transparent and democratic."