Bench Memos

The Battle for Judicial Selection Reform in Kansas

Back in November, I wrote about efforts to reform Kansas’s judicial-selection system. Kansas follows the Missouri Plan, which forces Governor Brownback to appoint judges from a slate handpicked by a bar-dominated nominating commission. These judges must later stand for retention elections. After the conservative takeover of the Kansas senate in August, efforts to repeal the Missouri Plan for appellate judges have picked up speed. State representative Lance Kinzer is pushing for the federal model of judicial selection, which would free Governor Brownback to appoint judges subject only to senate confirmation and later retention elections, while others would like to see appellate judicial elections.

Retiring Kansas Court of Appeals judge Christel Marquardt wants things to stay the same. As the Topeka Capital-Journal reports, she thinks that the Missouri plan “‘is by far’ the fairest way,” of selecting appellate judges, while the proposed reforms would overly politicize the judiciary and inflate money’s corrupting role in judicial selection. No system of judicial selection is perfect, but Judge Marquardt’s concerns about both politicization and money’s corrupting influence are misguided, dangerously masking how harmful the Missouri Plan can be.

As my JCN colleague Carrie Severino has previously written, the Missouri Plan is the leading source of a politicized judiciary, ceding judicial selection to an unaccountable, lawyer-dominated nominating commission. Professor Brian Fitzpatrick has persuasively documented that instead of removing politics from the judiciary, it masks it under the guise of merit selection, tilting judicial nominees overwhelmingly to the left. Carrie explains that Professor Fitzpatrick found that under the Missouri Plan,“[f]or the nominees for whom campaign-donation data was available, 87 percent donated primarily to Democrats, while only 13 percent gave primarily to Republicans. The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans.”

This leftward tilt of the judiciary has been evident in Kansas, where the nominating commission passed over two prominent conservative candidates for the Court of Appeals, snubbing Governor Brownback in the process. Governor Brownback is not the only governor that has been burned by the Missouri Plan. As the Wall Street Journal reported at the time, Missouri’s nominating commission repeatedly jammed former Republican governor Matt Blunt, rigging their judicial recommendations in favor of trial lawyers. It got so bad that Governor Blunt even considered rejecting their recommendations altogether in favor of letting the commission decide.

Judge Marquardt’s concern about money’s influence upon elections is also erroneous — even ignoring the fact that Kansas already provides for judicial elections for retention. Kansas recusal laws are an antidote to concerns about influence peddling, making it nearly impossible for moneyed interests to buy votes. Professor Chris Bonneau has also argued that there is no scholarly proof that judicial elections put justice up for sale, or otherwise influence judicial legitimacy, quality, or independence.

Both judicial elections and the federal model of judicial selection would represent a significant improvement for Kansas, although I would personally prefer the federal model. As Carrie argued back in April:

That structure [the federal model] has worked well at the federal level for more than 200 years, producing judges of the highest quality while forcing senate and presidential candidates to answer public questions about their judicial philosophy. In contrast, the current method of selection, the Missouri Plan, empowers an unaccountable commission of lawyers, diffusing decision-rights so that no one is truly responsible for the important act of choosing a judge.

I wish Governor Brownback, Representative Kinzer, and other allies fighting for sensible judicial selection reform the best of luck.

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