Committee hearing proposals to change the way Kansas Supreme Court justices are selected

A move in the Legislature that could affect school finance by changing the way Kansas Supreme Court justices are selected was aired out Tuesday before a special legislative committee. The 2019 Special Committee on Judiciary will continue meeting Wednesday for discussion and recommendations for the 2020 Legislature, which starts its session in January. 

Kansas Supreme Court justices are appointed by the governor from a list of three candidates submitted by the Supreme Court Nominating Commission. That non-partisan Nominating Commission includes nine members, five of whom are appointed by Kansas lawyers and four by the governor. Justices on the court are subject to retention election. 

Some legislators who have criticized decisions by the state Supreme Court that have protected abortion rights and increased school funding, have called for making the justices subject to Senate confirmation, similar to the way justices are selected to the U.S. Supreme Court. 

“The federal model with the necessary check of senate confirmation gives the people’s elected representatives and thereby the people themselves greater input into the process of judicial selection,” state Sen. Ty Masterson, R-Andover, said in written testimony to the Special Committee on the Judiciary. 

Stephen Ware, a law professor at the University of Kansas, said the current system is undemocratic because a majority — five of nine members — of the Supreme Court Nominating Commission are picked by the Kansas Bar Association.  

“None of the other 49 states gives its bar so much power,” Ware said. 

But support of the current selection system came from a wide spectrum of interests, some of whom said changing it would inject too much partisan politics into the judiciary, reduce the judiciary’s independence and ultimately lower the public’s faith in the judicial branch of government.  

The Greater Kansas City Chamber of Commerce, which includes numerous Kansas business members, said the current system “has served the business community well and offers a stable and predictable legal climate in the state.” The group said the U.S. Chamber Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, ranks Kansas in the top 20 states in the areas of impartiality, competence and fairness. 

Jeffrey Jackson, law professor at Washburn University, said even though politicians may be upset with judicial rulings, that shouldn’t mean the system should be changed. “They (judges) have to be counted on to provide impartial justice, even where that frustrates the popular will of the majority,” Jackson said. 

Both the Kansas Association of Defense Counsel and the Kansas Trial Lawyers support the current system, which was approved by Kansas voters in 1958. Thirty-four states use nominating commissions and none that have adopted such a system have moved away from it. 

KASB did not testify in the meeting but supports the role of an independent judiciary in enforcing constitutional provisions. “We oppose either changing the selection process for judges or limiting the ability of the courts to enforce those provisions, which would weaken the traditional separation of powers in Kansas,” the KASB Legislative Committee report states.   

In 2013, Gov. Sam Brownback signed into law a method copying the federal judicial selection model in the selection of Kansas Court of Appeals judges but changing the Kansas Supreme Court selection system would require amending the Kansas Constitution. That would require passage in the House and Senate by two thirds majorities and a majority vote in a statewide election.  

Over the past few years, proposed constitutional amendments have been approved in committee to have the election of justices but haven’t been approved by either chamber. Some of the proposals followed adverse rulings by the court against the state in school finance. In his 2015 State of the State, Brownback blamed the budget shortfall on K-12 spending. He called for repealing the school finance formula and replacing it with a temporary block grant, moving school board elections to the fall and placing a constitutional amendment before voters that would change the selection process of Kansas Supreme Court justices to the federal model or direct election.

Now there is a renewed and vigorous push after the court in April blocked a first-in-the-nation Kansas ban on a common second trimester abortion procedure. In doing so, the court ruled the Kansas Constitution’s Bill of Rights protects the ability to control one’s own body, including a woman’s decision whether to continue a pregnancy. The first half of Tuesday’s committee meeting was devoted to reviewing that court decision and hearing testimony from several anti-abortion conferees, and the second half of the meeting focused on the Supreme Court selection process. 

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