Last week, I laid out what I think is the most important reason why Kansans should Vote No on the proposed amendment to Kansas’ constitution on the August 4th ballot. Doing away with the current merit-based selection process for appointing Kansas’ Supreme Court justices and replacing it with a system where justices must raise funds and campaign for a spot on the bench will ultimately serve special interests, but not the interests of justice for Kansans.
Like most politically motivated campaigns, supporters on either side often adopt catchy slogans or invoke themes intended to inflame emotion. While they sound good on the surface and in social media posts, they frequently fail to tell the whole story.
I have had people ask my opinion about some of the arguments being made in support of the amendment and the reasons for it. As to at least some of the arguments I have seen, this is my attempt at responding. Read further, do not read further, the choice is yours. But, whatever you do, take the time to educate yourself before you vote. As with most consequential issues, there is far more to the questions involved than catchy slogans and superficial arguments on either side.
In no particular order, here are some of the arguments I have seen and, for what they are worth, my responses to them:
The “Democracy is served by electing justices” argument. Democracy in Kansas has, for almost 70 years, been protected by an independent judiciary using the current process for selecting justices. Is electing Supreme Court justices really going to support democracy?
The framers of the United States Constitution apparently did not think so. We do not vote for U.S. Supreme Court Justices, or any federal judges for that matter. Are voters in Kansas better positioned to evaluate the skills, experience, and qualifications of lawyers and judges that seek a position on the Court than voters in the rest of the United States are when it comes to selecting justices?
The Kansas Supreme Court should be made up of jurists with the education, experience, skillset, and temperament to interpret the law and render decisions that are not based on fealty to a constituency or special interest, but to the rule of law. Democracy is alive and well when you have an independent judiciary that is not made up of politicians, but of qualified justices that have the experience and expertise to make a lawful decision, not the popular one. The same characteristics that make a candidate popular in an election are not necessarily the characteristics that make someone qualified to be on the bench.
The “Attorneys control the process” and the decision is made “behind closed doors” arguments. It is true there are five attorneys on the nine-member nominating commission currently required to evaluate applicants for Supreme Court positions. Those lawyers that serve are not, however, appointed in a back room somewhere. They are elected in nonpartisan, contested elections by more than 11,000 lawyers licensed in Kansas from all over the state.
As to the fact that lawyers have a say in selecting the three finalists that are forwarded to the governor for consideration, as members of the legal profession they are uniquely qualified to evaluate the skillset and experience of people seeking a position on the highest court in the state. Having lawyers on the commission makes all the sense in the world if you are trying to identify the most qualified candidates for the job.
I know very few voters that will have the time or desire to review and evaluate the writing samples and work product of lawyers, or decisions of judges, that seek positions on the bench. None of us as voters will have the ability to interview candidates or their references, or conduct background checks, all of which are part of the current process that the nominating commission and governor’s office follow when evaluating applicants.
The “Justices are appointed behind closed doors” argument. This is a common theme of those promoting the amendment, and it is just not true. The nominating commission’s meetings are, in fact, open to the public. In recent years, those proceedings and the interviews of applicants in front of the commission have been made available on the internet as well.
The “Judges are not accountable to the voters” argument. This, also, is simply not true. Voters directly decide whether or not justices are retained on the bench. A new justice sits for a statewide retention vote after their first year on the bench, then every six years thereafter. Voters do have a say in the current process, and they can remove a justice if they believe it is warranted.
The “Our Supreme Court has been overturned by the U.S. Supreme Court” argument. Well, of course it has. Every state supreme court has been overturned at some point. But it is not accurate to suggest the Kansas Supreme Court’s record before the U.S. Supreme Court is worse than other states’. Claiming that the Kansas Supreme Court is overturned more often than other states’ courts, supporters of the amendment are publishing the percentage of overturned decisions from a cherry-picked, finite period of time, counting only the cases that the U.S. Supreme Court actually decided to hear.
The U.S. Supreme Court does not have to take a case appealed to it. In fact, they only accept about 1% of all the cases they are asked to hear each year. When they decline to hear a case, they essentially allow the decision from below to stand.
The national reversal rate for the Kansas Supreme Court that I’ve seen indicates that our Court has a historical reversal rate on cases taken by the U.S. Supreme Court of roughly 66%, which is under the national average of approximately 76%.
Even if you use the cherry-picked period of time that supporters of the amendment claim has seen a high reversal rate, the U.S. Supreme Court has only accepted roughly 10% of appeals from the Kansas Supreme Court during that timeframe. That means that, even with the cases that were reversed in that time period, approximately 90% of Kansas Supreme Court cases that were appealed to the U.S. Supreme Court have been allowed to stand or were upheld. If anything, our Court has performed pretty well over the years compared to the rest of the country.
The “Other states elect justices, so why not us?” argument. I have seen suggestions that more than twenty states already have elections for supreme court justices. Those numbers do not tell the whole tale. They include states where some form of nonpartisan election is held.
According to data compiled by the Brennan Center for Justice, only seven states have adopted a partisan election process for supreme court justices such as the one proposed in the current amendment. Seven out of fifty.
In two of those seven states (Illinois and Pennsylvania), the justices only run in an initial partisan election, then face retention elections like we currently have in Kansas the rest of their time on the bench. The proposed amendment would institute a partisan contest with every election cycle, a process utilized in only five states right now.
The “Kansas is the only state to do it this way” argument. It is simply not true to say that Kansas is the only state that uses a merit-based selection process. Kansas’ current system is one of fourteen in the country that uses a merit selection process (including Missouri, Indiana, Tennessee, Florida, Iowa, South Dakota, Nebraska, Oklahoma, Colorado, Wyoming, Utah, Alaska, and Arizona). Another ten states simply allow the governor to appoint justices. Our system may not be perfect, but Kansas is currently using the best system for finding the most qualified candidates for positions on the court.
The “We already elect district judges, why not justices?” argument. First, less than half of the judicial districts in Kansas elect their local district court judges. The others use local nominating commissions consisting of non-lawyers and lawyers who live in the district, then submit a list of finalists to the governor for consideration. Those district court judges then stand for retention elections.
Further, comparing a campaign for a district court judge position in the 23rd Judicial District (Ellis, Trego, Rooks, and Gove Counties) to running a massive statewide campaign for political office is not a comparison of apples to apples. It’s more like comparing an apple to an anvil.
Local district court judge candidates are frequently well known in the communities where they will serve, often use their own funds to finance their campaigns, buy a limited number of signs and flyers, and typically walk the district doing door-to-door campaigning. It’s still a huge undertaking, but they are not hiring campaign staff and making ad buys across the state. Running for a position on a statewide ballot is a full-time job. And it’s expensive.
Well over $100 million was spent on a campaign for a single “non-partisan” seat on the Wisconsin Supreme Court in 2025. More of that money came from special interests than the campaigns themselves, and even then, the money raised by the campaigns was staggering. Equating local judicial elections to a Supreme Court race is just disingenuous.
The “Elections will force judicial candidates to answer voters’ questions and campaign in public” argument. Certainly, political candidates have to campaign, and the amendment would turn applicants for judicial positions into political candidates, so I suppose the argument is true on its face.
However, lawyers and judges are subject to ethical rules. Those rules state that judges and judicial candidates at all levels are not allowed to make any statement or promises or commitments that are inconsistent with the impartial performance of being a judge, or that would reasonably affect or impair the fairness of a matter that is pending or impending in any court.
In other words, a candidate for a judicial position is not supposed to pre-judge a case or give a public opinion about an issue that is pending – or may someday be pending – before them.
We all know intuitively know that donors and special interests will only donate to candidates’ campaigns if they believe the candidates will rule the way they want once elected. Special interest groups investing millions of dollars will want to know, before they give their monetary support, exactly where the candidates they back stand on the issues that matter to those special interests. Those deals will not be made in public, but behind the very closed doors that supporters of the amendment claim to want to eliminate.
Our current system for selecting justices is geared toward finding the most qualified applicants to fill one of the most important jobs in the judicial branch of government. Let’s not upend that system in favor of political candidates. Again, I encourage you to Vote No on August 4.
— Chris Sook, attorney,
Hays