Why ‘merit-based’ Kansas Supreme Court selection is actually political | Opinion

In August 2026, the voters of Kansas will have an opportunity to take back the selection of Kansas Supreme Court justices from a small group of lawyers and political insiders.

Proponents of giving this enormous power to this privileged few assert that it is merit-based and apolitical. However, examination of the recent work of the nominating commission that recently sent three names to the governor to replace a retiring justice proves otherwise: The current system for selecting state Supreme Court justices is highly politicized and does not pick the most qualified applicants.

First, let’s look at the heavy political involvement of the commission members. Eight of the nine have made political contributions to one or more political candidates. Of those political contributions, 15 were to Democratic candidates and two to Republicans. One member was formerly the long-serving mayor of Kansas City and another the former communications director of the Kansas Democratic Party. It’s hard to argue that the committee was not steeped in Kansas politics, overwhelmingly Democratic.

Second, let’s look at the qualifications of the 15 applicants for the open state Supreme Court seat. One candidate’s credentials stand out — Brant Laue’s. Laue was an editor on the Cornell Law Review. He began his legal career as a law clerk to an Eighth Circuit United States Court of Appeals judge, a highly coveted position for recent law school graduates. He then served as special assistant to the assistant United States attorney general in the civil division of the Department of Justice, followed by stints as legal counsel to two governors in Kansas.

But most significantly, Laue has also served as the Kansas solicitor general, where his job was to supervise and conduct all appellate litigation for Kansas, including Supreme Court litigation. A solicitor general’s involvement in Supreme Court litigation is so extensive that he is often called the unofficial “eighth justice.”

No other candidate credentials came close to Laue’s. They were state trial court judges, professors of law or practicing attorneys without any special focus on appellate litigation, and certainly not Supreme Court litigation. None had any experience working at the highest levels of the federal and state executive branch of government, as did Laue. I do not know him personally, having met him only once, but I know that he enjoyed a very good reputation as legal counsel to governors and as solicitor general.

Also instructive are the answers the candidates gave to the most important question: What is their judicial philosophy or how will they approach their job as the ultimate arbiter of state law? Most gave vague, if not vacuous answers.

‘Judges don’t make law, they interpret’

One candidate whose name was sent to the governor said she did not have a philosophy for interpreting the constitution and rejected “textualism,” the idea that a judge should look first and foremost to the words of the law being interpreted. The two other candidates whose names were sent to the governor described their judicial philosophy as “pragmatic.” Pragmatism is not a judicial philosophy — it’s legislative philosophy.

These are most troubling answers. If a judge gives little or no regard to the text of the law, what is she left to rely on — tea leaves or crystal balls or her own policy preferences?

By contrast, Laue’s answer to this most important question was direct and cogent: “Judges don’t make law, they interpret (it) … (They should) start with the words … and then look at how it’s been interpreted before.”

He was also clear that politics should play no role in interpreting a statute: “Politics really has no place in the law. The role of a judge is to be conscious perhaps of his own proclivities on an issue and set them aside and rule based on what’s in the record and what are the legal arguments made by the parties.”

So, how did Laue fare in the voting by the commission members? Each of the nine members was able to vote for up to six candidates in the first round. Laue received zero votes, tying three others for dead last among the 15 applicants. No commission member placed the most qualified applicant among the six best candidates.

It’s impossible to square this result with the assertion that the commission system it is nonpolitical and merit-based. Indeed, given the overwhelming Democratic leaning of the committee members and Laue’s stellar and far superior credentials, Laue’s receipt of not one vote demonstrates beyond peradventure that his “disqualification” had nothing to do with merit, but with his work for Republican governors and a Republican attorney general. That is, politics plain and simple, not merit.

Kansans should reject a rigged system run by a small group of elite professionals and political insiders who pretend to be above politics, and in its stead adopt a transparent system that gives voters a voice in selecting those who are the final arbiters of the meaning and application of the laws by which they are governed.