Bench Memos

Law & the Courts

What’s the Matter with the Kansas Supreme Court? (Part 2)

(Carlos Jasso/Reuters)

Yesterday I wrote about the Kansas Supreme Court’s lawless ruling in Hodes & Nauser v. Schmidt, which for the first time in history located a right to abortion in the Kansas Constitution.  Today, I examine the role that commission-based methods of nominating state judges — a.k.a the Missouri Plan — have had in causing the Kansas Supreme Court and other state supreme courts to seemingly abandon their commitment to the rule of law.

As I have discussed in this space many times over the last decade, Kansas is one of approximately a dozen states that uses a version of the Missouri Plan to nominate state supreme-court justices.  The invention of progressive era activists, today the Missouri Plan (or so-called “merit system,” for its purported focus on nominee qualifications) is the favored method of selecting judges among liberal legal activists, because it helps the far-left leaning state-bar associations to capture a state’s legal infrastructure by giving them the dominant role in the selection of judges.

First adopted in Missouri in 1940, the Missouri Plan eventually made its way to Kansas in 1958. The Kansas Supreme Court has a total of seven justices. When a vacancy arises on the court, the Kansas Supreme Court Nominating Commission submits a list of three nominees to the governor, and the governor is then compelled to pick one of those nominees. At the end of a justice’s term, he or she is subject to a statewide retention election. If retained, the justice continues to another term. (Note that judges in Missouri Plan states are retained 99 percent of the time in such retention elections. This is not surprising given that voters are asked to vote yes or no on whether to retain incumbent candidates who are unopposed.)

As prescribed by the Kansas Constitution, the Kansas Supreme Court Nominating Commission is comprised of nine members, four of whom are elected by the state bar (one each from Kansas’s four congressional districts). Four non-lawyer members are appointed to the commission on a staggered four-year basis by the then-governor (again, one each from the four congressional districts).  The ninth member — the Chairman — is elected by members of the Kansas Bar Association. Thus, the majority of the nine seats are both held by lawyers and chosen by the state bar, and the staggering of the governor-appointed members means that the governor’s influence over the process is even further diluted.

It is no accident that judicial selection in Missouri Plan states is shielded from public accountability. The progressive-era architects of the Missouri Plan believed that all aspects of American life should be run by experts. Their vision was to remove the process of judicial selection from the purview of the electorate and instead place it in the hands of legal professionals. It’s no surprise that the bar associations were the leading advocates for the adoption of the Missouri Plan 80 years ago and remain its biggest cheerleaders today.

Missouri Plan boosters argue that commission-based judicial-selection systems result in a more independent judiciary. While that argument might sound appealing to anyone who dislikes the federal-selection process, or judicial elections, the data prove otherwise. In recent years, Professor Brian Fitzpatrick of Vanderbilt University Law School has done extensive empirical research studying the ideological impact of various methods of judicial selection across the country. A 2016 study conducted by Fitzpatrick found that state appellate judges in Missouri Plan/merit-selection states are demonstrably more left-leaning than the general electorate at large in those same states. According to Fitzpatrick, “judges in merit selection states were on average 16% more Democrat than the public in those states as measured by their federal house [Congressional] votes and 14.6% more Democrat than the public as measured by their state house votes.” In Kansas, the leftward ideological skew is even larger than the national average: Fitzpatrick found that Kansas appellate judges are 17.9 percent more Democrat than the public as measured by their Congressional votes and 16.8 percent more Democrat as measured by their state-house votes.

Professor Fitzpatrick’s research findings reflect the phenomenon we are seeing on the ground.  Supreme courts in states such as Kansas and Missouri (whose judicial activism I also recently wrote about) are beginning to bear an uncanny resemblance to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit — not exactly what one would expect in the Midwest. But is anyone surprised that a selection process dominated by liberal bar associations has led to disproportionately liberal courts?

Kansas is long overdue for judicial-selection reform. The state has already eliminated the Missouri Plan for its selection of court of appeals judges. Thanks to a 2013 bill passed by the legislature and signed into law by Governor Sam Brownback, Kansas’s court of appeals judges are now selected by the governor with the approval of the state senate, similar to how federal judges are appointed. But changing the method of selection for supreme-court justices will require an amendment to the Kansas Constitution.

The appointment method designed by the Founders and used for over two centuries to select federal judges has endured the test of time. But partisan judicial elections have also worked very well for many states, and, in fact, some of the most conservative judges in the country have come from states that elect their judges. Both of these alternative selection methods have proven to result in less ideological skew according to Professor Fitzpatrick’s research. And critically, both methods would finally provide a means of electoral accountability that is currently nonexistent in Missouri Plan states: The Kansas Bar Association is accountable to no one but its own members.

Without the judicial-selection reform that Kansas and other states desperately need, I fear that we can expect to see many more state supreme-court opinions that are completely untethered from the rule of law.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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