By DAVID KLEPPER
The Star’s Topeka correspondent
TOPEKA | A University of Kansas law professor is taking aim at the way Kansas selects its Supreme Court justices.
Professor Stephen Ware looked at the ways all 50 states choose their top judges and, in a paper released Thursday, concluded that in Kansas, lawyers have too much influence.
In Kansas, a nominating commission made up of attorneys and laypeople selects nominees for empty Supreme Court seats and recommends three candidates to the governor. The governor then makes the final decision. Sitting justices must regularly have a retention election.
The system, copied after a similar one used in Missouri, was designed to ensure ability trumps politics in the selection of new justices.
But Ware said the nominating commission system gives too much power to attorneys, who vote to appoint five of the nine members. And he noted that the judges tapped to serve on the court often belong to the political party of the governor who selects them — in nine of the last 11 Supreme Court appointments, the sitting governors selected a justice from their own party.
“The selection process is so insular,” Ware said. “It’s a very small world that looks to me like a good old boys club. That’s the problem: a closed, insular, self-protected system.”
Ware released his paper alongside a poll published by the Federalist Society, a conservative-libertarian legal think tank, that suggests many Kansans have concerns about how judges are selected.
Supreme Court justices and leaders of the Kansas Bar Association support the current system, saying it places qualifications and ability over politics.
Kansas legislators have debated judicial selection in recent years after controversial Supreme Court rulings on school finance and the death penalty. Some have argued for Senate confirmation hearings to give lawmakers the power to reject nominees. Others favor direct elections of judges. So far, all proposed changes have fallen flat.
Judges are elected at the district level in about half of Kansas’ counties, including Wyandotte and Sedgwick counties. Johnson County voters will face a ballot question next year asking whether the county should elect its judges or keep the current nominating commission system.
Tom Wright, president-elect of the state bar, served on the nominating commission for eight years and noted that states use a variety of systems to select justices. In some states, they are elected by voters; in at least one case, a state legislature picks the judges. In others, the judge is tapped by the governor but must be approved by the legislature.
He said the Kansas system does a good job of selecting candidates based on their qualifications and ability. He said elections and other types of selection systems could make the decision more political.
“I don’t hear many complaints (about the current system),” he said.
