KU professor Stephen Ware: “This violates basic equality among citizens, the principle of one-person, one-vote. The current system elevates one small group and treats everyone else like second-class citizens.”
Kansas is the only state in the union that grants lawyers a majority control of the judicial selection process. I can’t imagine how it’s constitutional. 10,000 lawyers control 2.8 million Kansans. In short, it doesn’t matter who is governor, or who is in the legislature: If all five lawyers agree on a set of nominees (on a committee of nine), the governor is required to choose among those three nominees.
From the liberal legal establishment, there is talk of “merit” and of “removing politics from the system” and of “competency.” But, of course, there is absolutely no proof that this process is any less political, or that the judges chosen are any more competent. The “politics” is merely removed from the public’s eye, to behind closed doors. The establishment will argue about the “ugly confirmation process in Washington,” where there are public hearings and Senate confirmation. Absurd – and who was it, exactly, who started the “borking” of qualified nominees — the left or the right? The left wants to make the process ugly, and upon succeeding, the left wants to argue that the process should be all the less accountable to Americans, in the name of making it prettier. How considerate — no, socially conservative — of the left, to “protect” the public from the ugliness of human nature, and the not-nice things that are said at public hearings.
Ware is more than a reasonable person in the op-ed, showing respect to lawyers while stating the obvious fact that there is nothing inherent in being a “lawyer” that makes a person more intelligent, or more representative of an average American.
Kansas lawyers tend to be fine people but they’re not superheroes. They don’t deserve more power than lawyers have in any of the other 49 states. In a democracy, a lawyer’s vote should not be worth more than any other resident’s vote.
So the problem is not that Kansas has a nominating commission but how that commission is selected. As Washburn law professor Jeffrey Jackson wrote, democratic legitimacy “would appear to favor a reduction in the influence of the state bar and its members over the nominating commission because they do not fit within the democratic process. Rather, the more desirable system from a legitimacy standpoint would have a greater number of the commission’s members selected through means more consistent with the concept of representative government.”
Bar groups in Kansas claim that this violation of our democratic principles is the only way to get competent judges. But the bar provides no evidence that judges selected in lawyer-favoring systems are better than judges selected in the more open and democratic appointment systems used by a dozen other states.
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