Selection of Supreme Court justices
ISSUE SUMMARY
Kansas utilizes a unique system for the selection of Supreme Court justices. The system, commonly characterized as “merit selection” was made a part of the Kansas Constitution at Article 3, Section 5, in 1958. Prior to then, Kansans elected justices to the court. The 1958 constitutional amendment was adopted because of the public’s anger over the infamous “triple play” of 1956, when outgoing Governor Fred Hall (who had failed to win re-election that year) resigned his office of governor so that the lieutenant governor could appoint Hall to the Supreme Court to take the place of Chief Justice Smith who resigned his position on the court for health reasons.
The current system was intended to limit the governor’s unchecked power to make Supreme Court appointments. The system works in the following way: when there is a vacancy on the Court, a Supreme Court Nominating Commission evaluates candidates, and then submits three names to the governor, who must make the appointment from that list of nominees. Because the eventual appointee must come from the Nominating Comission’s list of nominees, it is the de facto gatekeeper to the Supreme Court. A key component of this arrangement, as specified in the constitution, is the fact that the bar (lawyers licensed to practice by the state) has majority control over the Nominating Commission. The Commission is made up of nine individuals, five of whom must be lawyers who are elected by their peers, and four individuals who are appointed by the governor.
This arrangement is the only one of its kind in the United States. It virtually delegates to the legal profession the ability to select justices to the Supreme Court, by vesting power in a Nominating Commission that is controlled by lawyers. Several alternatives have been suggested which maintain “merit selection” but reduce the influence and control of the legal profession over this process. Some have suggested adoption of a modified “federal system,” wherein the governor’s appointment would require confirmation by the Kansas Senate. Other alternatives include rebalancing the Nominating Commission to eliminate the lawyer majority control, or adopting a different method altogether for selecting the Nominating Commission.
ADOPTED ACTION OR POLICY
KMS supports the concept of “merit selection” of Supreme Court justices, but believes the current system vests too much control over the selection of justices with the bar (licensed lawyers). KMS supports changes to the selection system that more appropriately balance the influence of the bar by reducing the number of lawyers on the Supreme Court Nominating Commission to fewer than a majority.
Adopted by the KMS House of Delegates on May 1, 2010.
