Lawton R. Nuss: When selecting Kansas judges, the current merit system works best

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Kansas Supreme Court Chief Justice Lawton R. Nuss shares the opinion of a former Texas Supreme Court Chief Justice.

John milburn

The Associated Press

Some members of the legislative and executive branches of the Kansas government have publicly expressed their admiration for many “Texan things.”

For example, they applaud the conservative leadership of Governor Rick Perry and praise the absence of income tax in Texas. Their high regard for our neighbor to the south may explain why our legislature is considering whether Kansas should move to the Texas system for the selection of Supreme Court justices. Texas provides judges through statewide elections.

Perhaps Lone Star State admirers who want to turn Kansas’ 57-year-old merit-based selection system into Texan-style elections should take a close look at the opinion of the former Texas Supreme Court chief justice. Wallace Jefferson’s opinions appeared last month in the Dallas Morning News.

Jefferson is alarmed by the sudden increase in spending by special interest groups to influence the state’s judicial elections. This spending fosters a perception that “justice is for sale”, which in turn “undermines public confidence in impartial courts”. According to Jefferson, these political marketing campaigns do not emphasize the merits of judges. Instead, they “seek to fill the courts with judges who will advance a particular agenda.” As a result, people believe that they do not have a neutral forum to assert their rights.

Jefferson speaks with extensive knowledge of Supreme Court Justices Elections. He was appointed to the Texas High Court by Perry in 2001 and won a statewide election the following year. In 2004, Perry appointed him chief justice. He went on to win the statewide election for that post before voluntarily leaving the court in 2013. Therefore, it speaks volumes when this seasoned jurist so publicly opposes the election of judges.

The former chief justice essentially rejects another proposed change that the Kansas legislature is considering for the selection of our state judges. Replacing our proven merit-based selection system with the so-called “federal model” will allow the governor to choose whoever he wants, followed by confirmation by the Senate.

Jefferson supports merit-based selection, which “gives a non-partisan commission the responsibility to assess the objective qualifications of judicial candidates and to make recommendations to the governor for appointment.”

I agree with my colleague from Texas. In Kansas, merit-based selection is a healthy competition that compares the qualifications of many applicants side by side. The names and qualifications of the candidates are made public and the selection process itself is open to the Kansans. Politics and its ever-growing money play no role.

But under the federal solution, only the name of the person appointed by the governor is known. As a result, this model gives neither the people of Kansas, nor even the Senate, the ability to compare the qualifications of the appointee to those of anyone else. Thus, unlike merit-based selection which establishes that the appointee was “one of the best” of all candidates, Senate confirmation of an appointee only establishes that he was “the best of the person.” presented.

Some argue that merit selection is an undemocratic process because the people play no role and produce judges who are not accountable. In fact, the people added it to the Kansas Constitution in 1958 with nearly 60 percent voter approval.

The Kansans vote every six years in statewide elections on whether to retain a particular judge. Last November, around 400,000 Kansans voted to keep my two colleagues who were on the ballot. As part of this “undemocratic” process, hundreds of thousands of Kansans will be able to vote on additional “irresponsible” judges in 2016.

Let’s keep our system.

This story was originally published February 27, 2015 13:37.


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