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 Court of Appeals used the same process until 2013 when the Kansas Legislature changed the process to a candidate being nominated by the governor and approved by the Kansas Senate.^[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 Anne Burke, must be a lawyer. This person is chosen in a statewide vote in which only lawyers licensed to practice law in Kansas 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]

Current members of the Commission

Anne Burke (Chairman)
David Rebein/Linda Weis (First Congressional District)
Natalie Haag/Felita Kahrs (Second Congressional District)
Matthew Keenan/Robert Hayworth (Third Congressional District)
Jay Fowler/Gary Mason (Fourth Congressional District)^[3]

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.^[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:

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.

Possible Quid Pro Quo on Recent Supreme Court Nomination

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]

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.

References

External links

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.