by Tim Carpenter, Kansas Reflector
September 13, 2022
TOPEKA — Republican and Democratic candidates for attorney general in Kansas disagree on whether the state Constitution ought to be amended to give the Kansas Senate veto power over a governor’s nominees for the Kansas Supreme Court.
GOP candidate Kris Kobach said Kansas should adopt the federal model relied upon to fill vacancies on the U.S. Supreme Court. Under that approach, the president unilaterally nominates a person to the nation’s highest court subject to consent by the U.S. Senate.
Democratic nominee Chris Mann, however, said he preferred to continue with Kansas’ merit-based nomination process for justices of the state Supreme Court. Kansas has followed this concept since 1958 when the state’s voters embedded in the state Constitution the idea of a commission selecting finalists and the governor making the state Supreme Court appointment without Senate involvement.
Mann, a Lawrence attorney, said the federal process would unnecessarily inject partisan politics of the Senate into selection of the seven justices of the state Supreme Court.
“As an attorney, and having seen and witnessed that process, I think the process works well now,” Mann said. “We need to make sure we’re continuing to make nonpartisan selections for our judiciary.”
Under the current system for filling seats on the state Supreme Court, a nine-member commission conducts public interviews with applicants and recommends three finalists to the governor. A Kansas governor draws upon that list when making the decision.
Critics of the existing Supreme Court selection process have objected because five members of the commission — a majority — are chosen by Kansas lawyers rather than politicians. Advocates of the current format of filling state Supreme Court vacancies argue vetting by the commission emphasized merit while the federal option invited cronyism.
Kansas GOP governors put one justice on the state Supreme Court in the past 20 years, while Kansas Democratic governors named seven justices to the state Supreme Court in that span.
Kobach, a rural Lecompton resident and former secretary of state, said he had advocated for 15 years alteration of the state Constitution so Kansas mirrored the federal model. He asserted Kansas’ merit-selection commission was “deeply flawed.”
“I don’t think it has produced the best judiciary nor has it produced a nonpartisan judiciary. I think most attorneys, if you ask them personally, would say we actually have a fairly partisan Supreme Court right now,” Kobach said.
‘Envy of the world’
Attorney General Derek Schmidt, who is running for governor against Democratic Gov. Laura Kelly, said reliance on the federal model for filling state Supreme Court vacancies would add transparency to the process. He is a former state senator.
“I believe the United States’ federal judiciary, with all of its warts, is the envy of the world and is tremendous in terms of its contribution to our overall system of government,” Schmidt said.
In 2013, then-Gov. Sam Brownback signed a bill that altered the system for making appointments to the Kansas Court of Appeals. The Republican governor argued the federal model should be applied to the state Court of Appeals and state Supreme Court.
The Brownback-era law abandoned merit-selection reviews by the commission in favor of a closed process in which the governor was solely responsible for nominating state Court of Appeals judges. Under the law, the 40-member Senate could accept or reject nominees by majority vote.
Brownback’s first pick to the Court of Appeals under the revised system was Caleb Stegall, who was general counsel to the governor. Stegall was confirmed to the Court of Appeals. Brownback subsequently appointed him to the state Supreme Court via the merit-selection process.
Gov. Laura Kelly, who is seeking reelection in November, implemented a policy by executive order in 2020 so a Court of Appeals Nominating Commission would review qualificiations of applicants, conduct interviews with them and submit three nominees for her consideration.
Her executive order didn’t alter state law requiring Court of Appeals nominees to undergo confirmation votes by the state Senate. In 2020 and 2021, the GOP-dominated Senate rejected Kelly’s nomination of Carl Folsom, with Republican senators complaining Folsom’s career as a state and federal public defender lacked breadth.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: email@example.com. Follow Kansas Reflector on Facebook and Twitter.