Bench Memos

The Constitutional Challenge to Judicial Selection in Kansas

On Friday, the Judicial Education Project, an educational affiliate of the Judicial Crisis Network, filed an amici curiae brief in the U.S. Supreme Court supporting the cert petition in Dool v. Burke.  The brief is on behalf of Governor Sam Brownback, speaker of the Kansas House of Representatives Ray Merrickpresident of the Kansas senate Susan Wagle, and top legislative leaders in the state.  Dool involves a constitutional challenge to Kansas’s version of the Missouri Plan, which uses a nine-member judicial nominating commission to send the governor a slate of judicial candidates for filling judicial vacancies. 

Unfortunately, five of the commission’s members are chosen in an election reserved exclusively for lawyers.  This disproportionately favors lawyers in the judicial selection process, “trampl[ing on] the equal-protection rights of non-lawyers. . . . By delegating to the state’s lawyers the authority to elect a controlling majority of a body that exercises almost all of the discretion involved in appointing supreme court justices, Kansas has virtually given the state bar the authority to elect those who choose the justices.”

State judicial selection is an important issue, especially in Kansas, which is why we have been so active there. Justice O’Connor has argued that “the question of how we choose our judges, whom we entrust to uphold and interpret our laws, speaks to foundational principles of our judiciary and, indeed, our nation.” As our brief explains, “The state court judges nominated by the lawyer-dominated Commission and ultimately appointed by the Governor will ‘have broad and powerful effects on the general public,’ Nelson Lund [citation omitted] and play a critical role in developing ‘the rules governing social behavior,’ Pet. App. 25a (McKay, J., dissenting).”

Read the whole brief. For more on these arguments, see Nelson Lund’s law review article, published in the Harvard Journal of Law and Public Policy


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