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 or the Court of Appeals[1]
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 Richard Hite, must be a lawyer. This person 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 and makes the appointment. The justices and judges then stand for retention, six years for a Supreme Court justice and four years for a Court of Appeals judge.[2]
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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.[4] 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:
Since Kansas has had controversy over its Supreme Court Nominating Commission, an appointment has raised questions of a possible quid pro quo: the appointment of Kansas private practice attorney Daniel Biles to the Kansas Supreme Court in January 2009.[5]
What has been questioned is whether Biles, a top campaign donor to former Kansas Governor Kathleen Sebelius and President Barack Obama, made monetary contributions to the campaigns that could have played a role in whether or not he was given the appointment by the Governor of Kansas. He was one of three finalists recommended by the nominating commission to Governor Seibelus.[6]
KanView, the state's transparency portal, shows that the law firm that Biles is a senior partner of has received over $360,000 of taxpayer dollars during the 2008 budget year while providing legal services for the Kansas Department of Transportation, the Kansas Department of Education, and the Kansas Lottery.[5]
Other partners in Biles law firm have extensive ties to Governor Sebelius and that raised questions from those in the legal community in Kansas whether there could be possible "pay to play" politics regarding judicial selections, citing the Bar Association's influence.[5]
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: