Thank you for this opportunity to discuss the important issue of judicial selection. HCR 5033 and HB 2770 propose changing the current method of appellate court judicial selection in Kansas. Under these proposals the Governor would be allowed to nominate any licensed Kansas attorney over the age of 30 to serve on the Kansas Court of Appeals or the Supreme Court of Kansas. The Governor’s nomination would be subject to Senate Confirmation. Members of the Court would still stand for retention under the same criteria as the current system. The current judicial nominating commission process under which a commission of attorneys and political appointees select three candidates from which the Governor must choose in filling an appellate court vacancy would be eliminated. These proposals would leave the selection process for District Court Judges unchanged.
My basic rational for this proposal is simple. When the President fills a U.S. Supreme Court vacancy he is not left to choose from among a list submitted by the American Bar Association or some other group. He or she is free to select the best available person for the job. The Governor should have this same authority; subject to review by the Senate to avoid cronyism or other abuse of power.
The current system is intended to heighten confidence in the judiciary by isolating it from political influence. I would contend that in reality this isolation serves to exacerbate public frustration with and alienation from a process they see as insular and elitist. Placing clear responsibility for judicial selection in the hands of politically accountable elected officials will provide an appropriate mechanism by which the people may at least indirectly participate in the process of judicial selection.
States currently use a wide variety of methods to select appellate court judges. Twenty-four states use some from of nominating commission process. Thirteen states utilize nonpartisan elections, eight States utilize partisan elections. Four states select judges via gubernatorial appointment and two states follow the practice of legislative appointment.
This proposal is not radical in any way but rather follows the familiar pattern of the appointment process to the federal judiciary. For those who desire a more detailed discussion of the numerous advantages of this system I would direct your attention Federalist # 76 by Alexander Hamilton. For now I would simply suggest that we have nothing to fear from allowing the people at least an indirect influence over the judicial selection process. The Governor would remain free to consult with whatever experts she might choose in aiding her in the selection process. The Senate would be well positioned to serve as a check against any rash or ill advised appointment by the Governor. And the people would be empowered to demand that candidates for the office of Governor or Senator give an account of the standards and principles they would apply in serving their appointed roles in this process.
