The flawed, anti-democratic judicial selection model used in many states
The following article is published in Kansas City’s new monthly print newspaper, The Citizen, during this month of March 2011. If you’re in Kansas City, please contact The Citizen’s owners to ask how you might help make the paper as successful as possible (for example, if you know of coffee shops or bars where the paper can be dropped off for free to readers.
This article is about how Kansas selects its judges. Eight other states use a similar method — sometimes referred to as the “Missouri Plan” or the “merit system.” But Kansas’ judicial selection method is the only one in America that makes it largely irrelevant who the governor is, or who is in the legislature — lawyers control a committee that decides, in secret, three judicial nominees, one of whom must be chosen by the governor (or else the Chief Justice gets to choose, if the governor refuses).
The article, in part, is below. Click here for the entire article at The Citizen-Kansas City’s Web site (kc.citizen-publications.com).
“The basic issue here is democracy, where we have equal voting rights for all citizens.”
– Stephen Ware, Professor of Law, University of Kansas
Ware is not referring to an emerging democracy in a far-off nation. Rather, he’s talking about the lack of ademocracy in his home state of Kansas, where judges are chosen secretly by an elite, unaccountable group ofpeople. In fact, the judicial selection method used in Kansas is less accountable, less democratic than in any other state.
With human nature being what it is, it is not surprising that unaccountable judges act in an unaccountablemanner. The result: in deep-Republican Kansas, we have some of the most activist, liberal judges in America.
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Today, the Kansas Supreme Court not onlyfunctions as the top judicial branch but as a super-legislature, as the most powerful branch of Kansas government. The only action that will serve as a check or balance to our courts is an overhaul to the method of judicial selection.
Lawyers are extremely Democratic, at leastaccording to where they put their money.According to OpenSecrets.org, a project of theCenter for Responsive Politics, lawyerscontributed $93 million to Democratic federalcandidates and political action committeesduring the 2010 elections. That’s compared to the $28.2 million donated to Republican candidates and PACs.
When I served in the Kansas House, we debated Kansas judicial selection method in the Federal and State Affairs Committee. To the experts who testified in favor of the current system, I asked: Is citizenship arequirement, in order for lawyers throughout Kansas to vote for the Supreme Court Nominating Commission?
Incredibly, the answer I received was “No.” Meaning, even non-citizens are legally allowed to play a significant role in the process of choosing Kansas judges.
Proponents of the current judicial selection method frequently refer to it as “merit-based,” but such a notion insults the good intelligence of the voters, who are fully capable of deciding the merit of their legislators, spouses, places of education, and cell phone providers.
“The current system of selecting our Court of Appeals judges and Supreme Court Justices disenfranchises all but the 9,000 Kansas lawyers,” said Alan Cobb, a lawyer and Vice President of State Operations with Americans for Prosperity. “The defense by some lawyers of the current system, that only they have the smarts and aptitude to choose who would and who wouldn’t be a good judge, is the height of elitism and arrogance.”
Connect with Benjamin Hodge at Facebook, Twitter, LinkedIn, The Kansas Progress, and LibertyLinked. Hodge is President of the State and Local Reform Group of Kansas. He served as one of seven at-large trustees at Johnson County Community College from 2005-’09, a member of the Kansas House from 2007-’08, a delegate to the Kansas Republican Party from 2009-’10, and was founder of the Overland Park Republican Party in 2011. His public policy record is recognized by Americans for Prosperity, the Kansas Association of Broadcasters,the Kansas Press Association, the Kansas Sunshine Coalition for Open Government, the NRA, Kansans for Life, and the Foundation for Individual Rights in Education (FIRE).