Kansas Supreme Court Nominating Commission
Encyclopedia
The Kansas Supreme Court Nominating Commission (SCNC) was established in 1958 with an amendment to the state's constitution. It is tasked with presenting the governor
with a slate of three candidates whenever a vacancy occurs on the Kansas Supreme Court
or the Court of Appeals
The Commission is a nine-member board. Four of the Commission's members are non-attorneys appointed by the Governor
; four others are attorneys selected by attorneys in each of the State's four Congressional Districts. The Chair of the Commission, currently Richard Hite, must be a lawyer. This person is chosen in a statewide vote in which only lawyers who belong to the Kansas Bar Association
are allowed to vote.
After voting, the Commission sends the names of three individuals to the Governor for each vacancy. The votes of the SCNC are not made public. The Governor interviews the candidates and makes the appointment. The justices and judges then stand for retention, six years for a Supreme Court justice and four years for a Court of Appeals judge.
, is a critic of the way judges are selected through the SCNC. In November 2007, he presented an academic report regarding what he sees as the flaws in the process of choosing judges in current use in Kansas. Ware writes, "Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices. The bar consequently may have more control over the judiciary in Kansas than in any other state." He proposes a series of reforms which he says would "reduce the amount of control exercised by the bar and establish a more public system of checks and balances".
His objections can be summarized as:
: the appointment of Kansas private practice attorney Daniel Biles
to the Kansas Supreme Court
in January of 2009.
What has been questioned is whether Biles, a top campaign donor to former Kansas Governor Kathleen Sebelius
and President Barack Obama
, made monetary contributions to the campaigns that could have played a role in whether or not he was given the appointment by the Governor of Kansas. He was one of three finalists recommended by the nominating commission to Governor Seibelus.
KanView, the state's transparency portal, shows that the law firm that Biles is a senior partner of has received over $360,000 of taxpayer dollars during the 2008 budget year while providing legal services for the Kansas Department of Transportation, the Kansas Department of Education, and the Kansas Lottery.
Other partners in Biles law firm have extensive ties to Governor Sebelius and that raised questions from those in the legal community in Kansas whether there could be possible "pay to play
" politics regarding judicial selections, citing the Bar Association's influence.
Governor of Kansas
The Governor of the State of Kansas is the head of state for the State of Kansas, United States. Under the Kansas Constitution, the Governor is also the head of government, serving as the chief executive of the Kansas executive branch, of the government of Kansas. The Governor is the...
with a slate of three candidates whenever a vacancy occurs on the Kansas Supreme Court
Kansas Supreme Court
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
or the Court of Appeals
Kansas Court of Appeals
The Kansas Court of Appeals is the intermediate-level appellate court for the U.S. state of Kansas.-History:The Kansas Legislature crated the first Kansas Court of Appeals in 1895, to help the Kansas Supreme Court with an increasingly heavy caseload. The original statute that created the court...
The Commission is a nine-member board. Four of the Commission's members are non-attorneys appointed by the Governor
Kathleen Sebelius
Kathleen Sebelius is an American politician currently serving as the 21st Secretary of Health and Human Services. She was the second female Governor of Kansas from 2003 to 2009, the Democratic respondent to the 2008 State of the Union address, and chair-emerita of the Democratic Governors...
; four others are attorneys selected by attorneys in each of the State's four Congressional Districts. The Chair of the Commission, currently Richard Hite, must be a lawyer. This person is chosen in a statewide vote in which only lawyers who belong to the Kansas Bar Association
Kansas Bar Association
The Kansas Bar Association is a voluntary, non-profit bar association for the state of Kansas with the headquarters located at 12th and Harrison St. in Topeka. The KBA has approximately 7,000 members and was founded in 1882.- Membership :...
are allowed to vote.
After voting, the Commission sends the names of three individuals to the Governor for each vacancy. The votes of the SCNC are not made public. The Governor interviews the candidates and makes the appointment. The justices and judges then stand for retention, six years for a Supreme Court justice and four years for a Court of Appeals judge.
Current members of the Commission
- Richard Hite (Chairman)
- Kerry McQueen/Janet Juhnke (First Congressional District)
- Patricia Riley/Dale Cushinberry (Second Congressional District)
- Matthew Keenan/Katherine DeBruce (Third Congressional District)
- Lee Woodard/David Farnsworth (Fourth Congressional District)
Criticism of selection process
Stephen Ware, a law professor at the University of KansasUniversity of Kansas
The University of Kansas is a public research university and the largest university in the state of Kansas. KU campuses are located in Lawrence, Wichita, Overland Park, and Kansas City, Kansas with the main campus being located in Lawrence on Mount Oread, the highest point in Lawrence. The...
, is a critic of the way judges are selected through the SCNC. In November 2007, he presented an academic report regarding what he sees as the flaws in the process of choosing judges in current use in Kansas. Ware writes, "Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices. The bar consequently may have more control over the judiciary in Kansas than in any other state." He proposes a series of reforms which he says would "reduce the amount of control exercised by the bar and establish a more public system of checks and balances".
His objections can be summarized as:
- When the SCNC chooses a slate of judges for the governor to make a final selection from, their votes are conducted in secret.
- Although the SCNC is said to be non-partisan, the historical record is that governors appoint to the commission members who are sympathetic to their political ideologies, often selecting commission members who are distinctly partisan.
- From 1987-2007, governors appointed 22 people to the SCNC. In every case, when a governor appointed a member of the commission, that appointee was a member of the governor's own political party.
- This has resulted in nominations of justices to the Kansas Supreme CourtKansas Supreme CourtThe Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
who are themselves partisan. - From 1987-2007, eleven new justices were appointed to the court. Nine of the eleven belonged to the same political party as the governor who appointed them.
Possible Quid Pro Quo on Recent Supreme Court Nomination
Since Kansas has had controversy over its Supreme Court Nominating Commission, an appointment has raised questions of a possible quid pro quoQuid pro quo
Quid pro quo most often means a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favour for a favour" and the phrases with almost identical meaning include: "give and take", "tit for tat", "this for that", and "you scratch my back,...
: the appointment of Kansas private practice attorney Daniel Biles
Daniel Biles
Daniel Biles is a Justice on the Kansas Supreme Court. Biles was appointed on January 7, 2009, by Kansas Governor Kathleen Sebelius to replace retiring Chief Justice Kay McFarland.-Early life and education:...
to the Kansas Supreme Court
Kansas Supreme Court
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
in January of 2009.
What has been questioned is whether Biles, a top campaign donor to former Kansas Governor Kathleen Sebelius
Kathleen Sebelius
Kathleen Sebelius is an American politician currently serving as the 21st Secretary of Health and Human Services. She was the second female Governor of Kansas from 2003 to 2009, the Democratic respondent to the 2008 State of the Union address, and chair-emerita of the Democratic Governors...
and President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, made monetary contributions to the campaigns that could have played a role in whether or not he was given the appointment by the Governor of Kansas. He was one of three finalists recommended by the nominating commission to Governor Seibelus.
KanView, the state's transparency portal, shows that the law firm that Biles is a senior partner of has received over $360,000 of taxpayer dollars during the 2008 budget year while providing legal services for the Kansas Department of Transportation, the Kansas Department of Education, and the Kansas Lottery.
Other partners in Biles law firm have extensive ties to Governor Sebelius and that raised questions from those in the legal community in Kansas whether there could be possible "pay to play
Pay to Play
Pay to play, sometimes pay for play, is a phrase used for a variety of situations in which money is exchanged for services or the privilege to engage in certain activities...
" politics regarding judicial selections, citing the Bar Association's influence.
Proposals for reform
Those who believe that the system of selecting judges in Kansas is dominated by political considerations rather than by assessing the merits and professional qualifications of judges are advocating for these reforms:- Reduce the portion of members of the SCNC who are chosen by the Kansas Bar Association. The majority of the twenty-four states that allow their state bar some input into selecting judges allow their bar to pick fewer than one-third of the members of their respective judicial selection commissions.
- Allow the Speaker of the House and the President of the Senate to each choose two commissioners, with the Governor choosing two and the Bar choosing three. This would reduce the likelihood that every member of the commission appointed during a particular governor's term in office would be from his or her party, as has historically been the case.
- Eliminate the secrecy in the votes taken by the SCNC.
- Go to a system of popular election of judges.
- Allow the state senate to confirm or deny the appointments to the Kansas Supreme CourtKansas Supreme CourtThe Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
made by the Governor. Ten other states with a commission-selection method of appointing judges require senate confirmation.
External links
- Still no need to politicize courts, Wichita Eagle Blog, Jan 15, 2007.
- Updated Political Profile of Members of the Kansas Supreme Court Nominating Commission, Kansas Meadowlark, Dec 28, 2007.
- Judicial selection process criticized, Lawrence Journal-World, Dec 1, 2007.
- Selection to the Kansas Supreme Court, The Federalist Society for Law and Public Policy Studies, Nov 26, 2007.
- Sebelius Replaces Appointee to Supreme Court Nominating Commission After 42 Days, Kansas Meadowlark, Aug 13, 2007.
- Sebelius appoints wife of "dean of Ellis County Democratic politics" to Supreme Court Nominating Commission, Kansas Meadowlark, July 3, 2006.
- Political Profile of Members of the Kansas Supreme Court Nominating Commission, Kansas Meadowlark, July 3, 2006.