Kansas Supreme Court Nominating Commission
The Kansas Supreme Court Nominating Commission (SCNC) was established in 1958 with an amendment to the state's constitution. It is tasked with presenting the governor with a slate of three candidates whenever a vacancy occurs on the Kansas Supreme Court.
The Commission is a nine-member board. Four of the Commission's members are non-attorneys appointed by the Governor; four others are attorneys selected by attorneys in each of the State's four Congressional Districts. The Chair of the Commission, currently Anne Burke, must be a lawyer. The Chair of the Commission is chosen in a statewide vote in which only lawyers who belong to the Kansas Bar Association are allowed to vote.
After voting, the Commission sends the names of three individuals to the Governor for each vacancy. The votes of the SCNC are not made public. The Governor interviews the candidates selected by the Nominating Commission and makes the final appointment. The justices then stand for retention in the next statewide general election and then each succeeding six years.
Criticism, changes to the selection process
Gov. Sam Brownback signed House Bill 2019 on March 27, 2013, which eliminates the nominating commission from the judicial selection process for the Court of Appeals. Previously, the commission vetted both Supreme Court and Court of Appeals candidates prior to sending them along to the Governor. The legislature only removed the nominating commission from the selection process for the Court of Appeals, since changing the selection process of Supreme Court justices requires a constitutional amendment.
Criticism of selection process
Stephen Ware, a law professor at the University of Kansas, is a critic of the way judges are selected through the SCNC. In November 2007, he presented an academic report regarding what he sees as the flaws in the process of choosing judges in current use in Kansas. Ware writes, "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." He proposes a series of reforms which he says would "reduce the amount of control exercised by the bar and establish a more public system of checks and balances".
His objections can be summarized as:
- When the SCNC chooses a slate of judges for the governor to make a final selection from, their votes are conducted in secret.
- Although the SCNC is said to be non-partisan, the historical record is that governors appoint to the commission members who are sympathetic to their political ideologies, often selecting commission members who are distinctly partisan.
- From 1987-2007, governors appointed 22 people to the SCNC. In every case, when a governor appointed a member of the commission, that appointee was a member of the governor's own political party.
- This has resulted in nominations of justices to the Kansas Supreme Court who are themselves partisan.
- From 1987-2007, eleven new justices were appointed to the court. Nine of the eleven belonged to the same political party as the governor who appointed them.
Controversy over 2009 Supreme Court selection
The nomination of Daniel Biles by Kathleen Sebelius irked some who examined donations made to the governor and other Democrats. Also, the firm at which Biles was a partner had ties to government agencies.
This appointment again led some to question the method of judicial selection in Kansas. Opponents of the plan argue that without the Kansas Senate involved in the nomination process, like the Senate is in many other states, the Nominating Commission and governor have the ability to politicize the judiciary.
Federal Lawsuit to Block Commission in 2010
In August 2010, four Kansas voters filed suit in the United States District Court for the District of Kansas to enjoin lawyers elected by the state bar from participating in the selection process. In a decision filed November 3, 2010, District Judge Monti Belot dismissed the lawsuit finding that since the Commission serves "only one function: to screen applicants to fill vacancies on the Kansas Supreme Court and Court of Appeals," for consideration of appointment by other officials, the Commission has no duties, functions and powers which "affect all residents of Kansas daily" that mean the process violates any constitutional prohibition.
Proposals for reform
Those who believe that the system of selecting judges in Kansas is dominated by political considerations rather than by assessing the merits and professional qualifications of judges are advocating for these reforms:
- Reduce the portion of members of the SCNC who are chosen by the Kansas Bar Association. The majority of the twenty-four states that allow their state bar some input into selecting judges allow their bar to pick fewer than one-third of the members of their respective judicial selection commissions.
- Allow the Speaker of the House and the President of the Senate to each choose two commissioners, with the Governor choosing two and the Bar choosing three. This would reduce the likelihood that every member of the commission appointed during a particular governor's term in office would be from his or her party, as has historically been the case.
- Eliminate the secrecy in the votes taken by the SCNC.
- Go to a system of popular election of judges.
- Allow the state senate to confirm or deny the appointments to the Kansas Supreme Court made by the Governor. Ten other states with a commission-selection method of appointing judges require senate confirmation.
- Still no need to politicize courts, Wichita Eagle Blog, Jan 15, 2007.
- Updated Political Profile of Members of the Kansas Supreme Court Nominating Commission, Kansas Meadowlark, Dec 28, 2007.
- Judicial selection process criticized, Lawrence Journal-World, Dec 1, 2007.
- Selection to the Kansas Supreme Court, The Federalist Society for Law and Public Policy Studies, Nov 26, 2007.
- Sebelius Replaces Appointee to Supreme Court Nominating Commission After 42 Days, Kansas Meadowlark, Aug 13, 2007.
- Sebelius appoints wife of "dean of Ellis County Democratic politics" to Supreme Court Nominating Commission, Kansas Meadowlark, July 3, 2006.
- Political Profile of Members of the Kansas Supreme Court Nominating Commission, Kansas Meadowlark, July 3, 2006.
- Political Profile of Members of the Kansas Supreme Court Nominating Commission Kansas Meadowlark
- Kansas Judicial Branch website
- Legal Newsline, "Kansas Court of Appeals judges now picked by governor, with Senate confirmation," March 28, 2013
- Stephen Ware's report
- "Kansas Meadowlark," Kathleen Seibelius Picks Top Obama Donor for the Supreme Court, January 8, 2009
- U.S. District Court Asked to Stop Kansas Supreme Court Selection Process, Kansas Watchdog, Aug. 26, 2010
- Dool v Burke