The flawed, anti-democratic judicial selection model used in many states

The following article is published in Kansas City’s new monthly print newspaper, The Citizen, during this month of March 2011.  If you’re in Kansas City, please contact The Citizen’s owners to ask how you might help make the paper as successful as possible (for example, if you know of coffee shops or bars where the paper can be dropped off for free to readers.

This article is about how Kansas selects its judges.  Eight other states use a similar method — sometimes referred to as the “Missouri Plan” or the “merit system.”  But Kansas’ judicial selection method is the only one in America that makes it largely irrelevant who the governor is, or who is in the legislature — lawyers control a committee that decides, in secret, three judicial nominees, one of whom must be chosen by the governor (or else the Chief Justice gets to choose, if the governor refuses).

The article, in part, is below.  Click here for the entire article at The Citizen-Kansas City’s Web site (kc.citizen-publications.com).

“The basic issue here is democ­racy, where we have equal vot­ing rights for all citizens.”
– Stephen Ware, Pro­fes­sor of Law, Uni­ver­sity of Kansas

Ware is not refer­ring to an emerg­ing democ­racy in a far-off nation. Rather, he’s talk­ing about the lack of ademoc­racy in his home state of Kansas, where judges are cho­sen secretly by an elite, unac­count­able group ofpeo­ple. In fact, the judi­cial selec­tion method used in Kansas is less account­able, less demo­c­ra­tic than in any other state.

With human nature being what it is, it is not sur­pris­ing that unac­count­able judges act in an unac­count­ableman­ner. The result: in deep-Republican Kansas, we have some of the most activist, lib­eral judges in America.

[Click here or on image to enlarge]

Today, the Kansas Supreme Court not onlyfunc­tions as the top judi­cial branch but as a super-legislature, as the most pow­er­ful branch of Kansas gov­ern­ment. The only action that will serve as a check or bal­ance to our courts is an over­haul to the method of judi­cial selection.


Lawyers are extremely Demo­c­ra­tic, at leastaccord­ing to where they put their money.Accord­ing to OpenSecrets.org, a project of theCen­ter for Respon­sive Pol­i­tics, lawyerscon­tributed $93 mil­lion to Demo­c­ra­tic fed­eralcan­di­dates and polit­i­cal action com­mit­teesdur­ing the 2010 elec­tions. That’s com­pared to the $28.2 mil­lion donated to Repub­li­can can­di­dates and PACs.

When I served in the Kansas House, we debated Kansas judi­cial selec­tion method in the Fed­eral and State Affairs Com­mit­tee. To the experts who tes­ti­fied in favor of the cur­rent sys­tem, I asked: Is cit­i­zen­ship arequire­ment, in order for lawyers through­out Kansas to vote for the Supreme Court Nom­i­nat­ing Commission?

Incred­i­bly, the answer I received was “No.” Mean­ing, even non-citizens are legally allowed to play a sig­nif­i­cant role in the process of choos­ing Kansas judges.

Pro­po­nents of the cur­rent judi­cial selec­tion method fre­quently refer to it as “merit-based,” but such a notion insults the good intel­li­gence of the vot­ers, who are fully capa­ble of decid­ing the merit of their leg­is­la­tors, spouses, places of edu­ca­tion, and cell phone providers.

“The cur­rent sys­tem of select­ing our Court of Appeals judges and Supreme Court Jus­tices dis­en­fran­chises all but the 9,000 Kansas lawyers,” said Alan Cobb, a lawyer and Vice Pres­i­dent of State Oper­a­tions with Amer­icans for Pros­per­ity. “The defense by some lawyers of the cur­rent sys­tem, that only they have the smarts and apti­tude to choose who would and who wouldn’t be a good judge, is the height of elit­ism and arrogance.”

Click here to read more.


Connect with Benjamin Hodge at FacebookTwitterLinkedInThe Kansas Progress, and LibertyLinked. Hodge is President of the State and Local Reform Group of Kansas.  He served as one of seven at-large trustees at Johnson County Community College from 2005-’09, a member of the Kansas House from 2007-’08, a delegate to the Kansas Republican Party from 2009-’10, and was founder of the Overland Park Republican Party in 2011.  His public policy record is recognized by Americans for Prosperity, the Kansas Association of Broadcasters,the Kansas Press Association, the Kansas Sunshine Coalition for Open Government, the NRAKansans for Life, and the Foundation for Individual Rights in Education (FIRE).


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