Testimony in Opposition to amending the KS Constitution to Change Judicial Selection

This is testimony delivered to the Kansas Legislature's Special Committee on Judiciary by Ed Peterson, President of the Board of Directors of the MainStream Coalition, in opposition to amending the Kansas Constitution to change the method of judicial selection for the Kansas Supreme Court.

Testimony to the Special Committee on Judiciary
Chair, Sen. Eric Rucker
Hearing: October 1-2, 2019

Position – OPPOSE Changes to the Merit Selection Process of Kansas Supreme Court Selection

Mr. Chairman and Committee Members:

It is a pleasure to present the views and concerns of the MainStream Coalition to you today on the important matter of selection of Supreme Court Justices in Kansas. Before discussing the specific judicial selection options I would like to take a minute to consider what we should accomplish through a judicial selection process.

Obviously we want the selection process to place the “best” justices on the Supreme Court. Strong legal background and knowledge are necessary, but more importantly, we want individuals with sound mental and emotional well-being. We also want individuals with experience in the real world to enable legal decisions that will work. There is more to “Justice” with a capital “J” than merely getting the right legal decision; Justice must provide our citizens with the confidence that they will get a fair shake in the courts, that wrongs will be righted, and that the decisions are made without bias. When we fashion a judicial selection process, we want a process that both produces the best candidates, and contributes to the confidence citizens have in our judicial system.

There are four methods by which states select Supreme Court justices: (1) direct election—both partisan and nonpartisan; (2) gubernatorial appointment with or without legislative approval; (3) Legislative appointment; and (4) merit appointment, sometimes referred to as the Missouri plan. Kansas’s current model falls into the category of merit appointment. There are advantages and disadvantages to each method. Each method has the potential for empanelling excellent judges and each method has produced a disappointment or two.

I submit that the distinguishing feature among the various methods is the level of political involvement in the selection process. Direct elections obviously invite the most political activity into the process. Gubernatorial and Legislative appointment also include significant political engagement. Of the four options, merit selection invokes the least amount of political activity. In this time of highly partisan political division, the greater the amount of political involvement in judicial selection, the higher will be the mistrust of the ability of the judiciary to provide unbiased and impartial decisions. Put another way, with high political engagement in judicial selection, the public will perceive that the appointed justices bring a particular political viewpoint to their decisions on the court, which, over time, erodes public confidence that the judicial system provides Justice with a capital “J.” In order to advance the confidence of citizens in our judiciary, we should use a selection process that minimizes political activity.

The current Kansas system was adopted after the infamous Triple Play incident in 1957. That incident highlighted the pitfalls and abuses that can occur under the Gubernatorial appointment system. The merit appointment method injects the least amount of political activity of all the methods. The Kansas method relies on a committee of citizens and citizen-lawyers to screen applicants. These citizens are not in a position to experience political gain from their participation. This committee presents the Governor with a selection of three candidates from different political parties. The Governor thus makes a selection from a variety of qualified candidates. The merit system has served Kansas well. A change to a more political method necessarily means the general public will expect judicial decisions to be more political. I would add that the more political the process, the more likely the candidates themselves will receive the message that they are expected to carry out political agendas once sworn in as justices.

The current merit system of judicial selection functions well. There is no need to convert to a system that will inject unnecessary political influence into the judicial branch thereby diminishing public faith in the judiciary.

Thank you,

Ed Peterson
President, Board of Directors of the MainStream Coalition

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