By BLAISE MESA
The Beacon
Robert Edmunds won three judicial elections in his home state of North Carolina. He was elected to the state Court of Appeals before serving two terms on the state’s Supreme Court.
Edmunds said he never would have risen through the ranks without elections. He didn’t have any political connections to the governor. He didn’t run any big-city law firm. Edmunds won his races because he proved to voters he was the most qualified.
“Elections tap into the biggest talent pool,” Edmunds told Kansas lawmakers. “Any lawyer in good standing who has ambitions to serve on the bench can take a shot at it.”
Kansas lawmakers are now debating that question. Should voters elect justices to the Kansas Supreme Court? Or should the state keep its merit-based nominating process?
The proposal is a “colossal sea change” from the state’s current system, said Fred Logan with the Kansas Bar Association, and it would require the Kansas Constitution to be amended. A majority of voters would need to approve the change.
Supporters of the change, which include the state attorney general’s office and Americans for Prosperity, say a direct election of justices is needed so everyday Kansans have a voice in the judicial system. But opponents say this proposal demolishes an already effective system and pours dark money into the courts.
The Kansas Supreme Court’s current system
Kansas does not use the federal system for picking justices. The governor alone does not pick someone and there is no Senate confirmation.
The current system has a nominating commission that includes four lawyers and four nonlawyers. Each congressional district must have a lawyer and nonlawyer appointed to the commission.
Nonlawyers are appointed by the governor and lawyers are elected by other lawyers in their congressional district. A ninth member — a lawyer and chair of the commission — is elected by a statewide pool of lawyers.
The commission questions candidates in public interviews then selects three names and the governor makes the final decision from there. This system was approved by voters in 1958 after a controversial selection to the state Supreme Court.
In 1956, then-Gov. Fred Hall lost reelection during the primary. Chief Justice of the Kansas Supreme Court Bill Smith was also sick and considering retirement but worried the incoming Democratic governor would appoint a liberal to the Supreme Court. Hall, Smith and Lt. Gov. John McCuish hatched a plan.
Smith retired from the Supreme Court. Hall resigned as governor and was replaced by McCuish. McCuish was governor for 11 days and appointed Hall to the state Supreme Court. That infuriated Kansas voters, who reformed the system and created the merit-based process we have today.
The desire for change
Rashane Hamby, director of policy and research at the American Civil Liberties Union of Kansas, said the current system works well and there’s no reason to change it.
Supporters of the bill who want to change the law acknowledged that elected judges and appointed judges are of the same quality. Those supporters also said the system needs to be overhauled to give voters more say in the state’s highest court. Kansans already vote on justices through retention elections where voters can kick justices off the bench if they want.
The current system lets the governor and the nominating commission grill candidates about their qualifications for the job, and that’s how the decision is made. Elections require candidates playing politics, Hamby said. Candidates aren’t always chosen based on qualifications but on money and donations from political groups that might have cases before the court.
“The Supreme Court should not be for sale to the highest bidder,” she said.
Almost two dozen states elect their judges. In Wisconsin, Hamby said, $51 million was spent on the 2023 Supreme Court race. The state’s race later this year is expected to top that spending and become the most expensive Supreme Court race.
Logan, with the Kansas Bar Association, said politics, fundraising and campaigning are all fine for the governor’s office or state officials. Not for the courts. Logan said the current system is free from politics and it should stay that way.
But Senate President Ty Masterson, an Andover Republican, doesn’t agree that the current process is free from politics.
He said the process of getting selected by the commission has political jostling. Holding elections gives everyone a chance to have their voice heard, not just a small group of people.
“Elections are how we govern from the bottom up,” Masterson said.
Masterson and other Republicans say they support changing the system so people have a voice. Supporters of the change also said that Supreme Court justices can time their resignations based on what political party holds the governor’s office. Allowing a regular vote would remove the possibility of selections being timed in a partisan manner, supporters say.
Kansas lawmakers have tried to change how Supreme Court justices are picked before. These debates are more than a decade old, but the Kansas Supreme Court’s decision to uphold abortion rights has raised the stakes on this debate.
“I would just comment that I would ask committee members and others to go out and read some of the justices’ opinions,” said Sen. Caryn Tyson, a Parker Republican, during the debate.
“I have,” said Sen. Mike Thompson, a Shawnee Republican, “and there’s concern in there.”