The Kansas Supreme Court

 

The Supreme Court is the highest court in Kansas. It consists of seven justices, each of whom is selected by the governor. The governor appoints from a list of three qualified individuals submitted by the Supreme Court Nominating Commission. After the first year in office, a justice is subject to a retention vote in the next general election. If a majority of electors votes to retain the justice, he or she remains in office for a term of six years. Justices are subject to a similar retention vote at the conclusion of each term.

The justice who is senior in terms of continuous service is designated by the Constitution as the chief justice, unless he or she declines or resigns the position. The chief justice exercises the administrative authority of the court.

Justices of the Supreme Court ordinarily do not conduct trials. They decide an appealed case by reading the record of the trial and written briefs filed by the parties, and hearing oral arguments of lawyers. They research and review the law involved in the case and then write an opinion which is usually published in bound volumes.

Is Justice Really Blind?

 

The process of selection of state Supreme Court justices in Kansas is currently completely in the control of the Nominating Commission.  The bar (lawyers licensed to practice in the state) selects five out of nine members of the Nominating Commission giving the bar majority control over the commission.  The bar is a special interest group that works to advance the causes of the group, not the public at large.  Allowing a special interest group this kind of power opens up the process to a lack of accountability or oversight from the public at the very least, and high levels of corruption, at the very most.

 

Reform of the Kansas Supreme Court selection process is not only essential, it is long overdue.

 

The reform that makes the most sense is using the time-honored and proven system of checks and balances instituted in the United States Constitution using all three branches of government in the appointment process.

 

First, a judicial candidate should be nominated by the governor (executive branch).  Second, the Senate (legislative branch) should vote to confirm the nominee.  Finally, once confirmed, the justice should stand for retention at the next general election which occurs after one year in office, and if retained in that election, should stand for retention every four years thereafter.

 

Only this type of reform can restore the confidence of the citizens of Kansas in the Kansas Supreme Court.

 

The following statements are excerpts from Selection to the Kansas Supreme Court by Stephen J. Ware.  To read the complete booklet and to learn more about the nationwide debate over reforms in this area go to:

 http://www.fed-soc.org/doclib/20071126_KansasPaper.pdf

 

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.

 

More than four-fifths of the states either give the bar no official power in the initial selection of supreme court justices or balance the bar’s role with power exercised by publicly-elected officials.  These states generally select their justices through: 

 

(1)   appointment by the legislature,

 

(2)   confirmation of the governor’s nominees by the legislature, or

 

(3)   elections in which a lawyer’s vote is worth no more than any other citizen’s vote.

 

Less than one-fifth of states allow the bar to select members of a nominating commission that has the power to ensure that one of its initial nominees becomes a justice.  And Kansas alone allows the bar to select a majority of such a commission.

 

There is a nationwide debate brewing right now over whether “non-partisan,” “merit” selection of judges should be reformed to achieve two goals: first, to reduce the amount of control exercised by the bar, and, second, to subject the political side of the judicial selection process to a more public system of checks and balances. 

 

Governors should not have absolute power over the selection of supreme court justices.  “Power corrupts and absolute power corrupts absolutely.”  The balance of power should be designed to include a system of checks and balances.  The only check, currently, on the governor’s power to select justices is the bar (lawyers licensed to practice in the state), rather than the Legislature or the election process.

 

Scholars who have studied judicial nominating commissions (such as the one in Kansas) around the United States conclude that the commissions are very political but that their politics—rather than being the politics of the citizenry as a whole—are “a somewhat subterranean politics of bar and bench involving little popular control.”

 

So the question is, when taking the long view, did the Framers of the U.S. Constitution get it right?  They created three co-equal branches of government (executive, legislative and judicial) and a system of checks and balances that has stood the test of time longer than any other written constitution in human history.  A cardinal virtue of the U.S. Constitution is that, at crucial points, each branch is checked by both of the other two branches.  For example, a member of the judicial branch is nominated by the executive and confirmed by the legislature.  These checks come from elected officials, responsible to the public as a whole, not a single interest group or “faction.”  Also, these checks take the form of public votes so citizens can, on election day, hold their elected officials accountable for these important decisions.

 

Proposals to institute senate confirmation of a nominated justice have received significant support in the Kansas Legislature in recent years.  Senate confirmation of Kansas Supreme Court Justices is a reform worthy of serious consideration. 

 

For information about the Kansas Supreme Court, go to:

http://www.kscourts.org/Kansas-Courts/Supreme-Court/default.asp

The following information may be found at:

http://www.kscourts.org/kansas-courts/supreme-court/justice-bios/default.asp

 

Kansas Supreme Court Justices

Seated left to right: Hon. Robert E. Davis, Hon. Kay McFarland, Chief Justice, and Hon. Lawton R. Nuss Standing left to right: Hon. Eric S. Rosen, Hon. Marla J. Luckert, Hon. Carol A. Beier, Hon. Lee A. Johnson.

The following justices currently sit on the Kansas Supreme Court:

·                     Chief Justice Kay McFarland

·                     Justice Robert E. Davis

·                     Justice Lawton Nuss

·                     Justice Marla J. Luckert

·                     Justice Carol A. Beier

·                     Justice Eric S. Rosen

·                     Justice Lee A. Johnson