Where do KS Supreme Court Justices Come From?

A scientific random sample poll finds that Kansas voters do not know how Kansas Supreme Court Justices get their jobs.

In February 2016 Freestate Poll asked “How do you think Kansas Supreme Court Justices get their position on the court? Are they appointed by the Governor and confirmed by the State Senate? Selected by a committee of lawyers? Or, Elected like other statewide officials? Or, are you not sure how Kansas Supreme Court Justices get their position?”
Kansas Voters responded:

SupremCourtJustices
(Click chart to expand)

Some might quibble over the form of the question, but we at Freestate feel confident that if a person truly knew how Kansas Supreme Court Justices are appointed, the answer “selected by a committee of lawyers” would jump out at them.

Article III, Section 5 (a) of the Kansas Constitution states how Supreme Court Justices are selected in Kansas:

“Any vacancy occurring in the office of any justice of the supreme court …. shall be filled by appointment by the governor of one of three persons possessing the qualifications of office who shall be nominated and whose names shall be submitted to the governor by the supreme court nominating commission established as hereinafter provided.”

Section 5(e) stipulates the make up the Supreme Court Nominating Commission:

“The supreme court nominating commission shall be composed as follows: One member, who shall be chairman, chosen from among their number by the members of the bar who are residents of and licensed in Kansas; one member from each congressional district chosen from among their number by the resident members of the bar in each such district; and one member, who is not a lawyer, from each congressional district, appointed by the governor from among the residents of each such district.”

The composition of the committee is 5 lawyers, 4 non-lawyers. The lawyers are elected by other lawyers.

Analysis & Commentary

If the Kansas Supreme Court merely decided technical matters of law, a supposedly non-partisan procedure would seem a sound system.

The nominating commission though is often populated with political partisans and the Kansas Supreme Court has frequently moved beyond mere points of law to involving itself matters reserved for the elected legislature, namely appropriation of funds. [Article II Sec. 24 of the KS Constitution states “Appropriations. No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.”]

The report linked above is several years old, but shows the political involvement of nominating commission members circa 2010.

Kansas voters do not know where Kansas Supreme Court Justices come from because the system is opaque and voters cannot hold the commission accountable. Appointments of this type were disparaged by Alexander Hamilton in the Federalist Papers

“Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope.”

The Federal Government system of appointing Supreme Court Justices is transparent and accountable. As Hamilton wrote,

“The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.”

If Kansas adopted a system in which Governor nominates and the State Senate confirms, the politics would be out in the open rather than in cloistered deliberations of 9 people.

METHODOLOGY

N= 737 Likely Voters
Date: Feb 15-16, 2016
Phone Mode: IVR
Weighting: Proprietary Model Score

DISCLOSURE

Principal Pollster JD Johannes is a Republican who has worked for Republican candidates and free market causes.