Bar Association offers to give up lawyers’ majority in choosing Supreme and appeals court judges

Kris Kobach testifies at hearing on judicial selection.

A day after Gov. Sam Brownback called on the Legislature to change the way Kansas selects Supreme Court and appellate judges, the president of the state’s association of lawyers offered to give up its majority on the state Judicial Nominating Commission.

The president of the Kansas Bar Association, Lee Smithyman of Overland Park, told legislators if they think lawyers have too much influence on picking judges, they should keep the system and reduce the number of lawyers in it.

“The Kansas Bar Association is very comfortable with a minority of attorneys on the (nominating) panel,” Smithyman said.

Both the House and Senate judiciary committees held hearings Wednesday on whether to change the selection process to direct election, where voters choose the top judges; or the “federal model” in which the governor appoints judges with the consent of the Senate.

In the current system, a nine-member commission — five lawyers elected by the Bar and four non-lawyers appointed by the governor — reviews applications and nominates three candidates. The governor must make a final selection from among the three nominees.

He proposed what the Bar Association calls the four-five-six plan, in which the Bar would select four members, the governor five, including a nonvoting chairman, and House and Senate leaders would choose six members.

“We lawyers think the present system is excellent,” he added. “We think we need to retain all the virtues that the merit system has given us.”

Brownback criticized the system in his State of the State speech Tuesday night, saying it “fails the democratic test,” and asked lawmakers to change it. He said he’d be fine with either direct election or the federal model.

Smithyman was the only proponent of the current system to testify to the House Judiciary Committee on a day set aside mostly for its opponents, including Secretary of State Kris Kobach. Kobach said he was testifying not in his official capacity, but as a lawyer and former law professor.

He said not only is the current system undemocratic, it doesn’t even pick the best judges.

“I would submit to you that if you look at the quality of the Kansas judiciary, Court of Appeals and Supreme Court, and compare it to similarly sized states like Maine, that has the federal model, just look at the resumes, look at the qualifications, I would say most people would say Kansas probably does not do as well,” Kobach said.

Kobach said the same holds true of Kansas’ federal judges, who were drawn from the same talent pool as the state judges but underwent a “crucible of scrutiny” under the federal model before receiving a presidential appointment. “I think most people would agree that the federal list (of judges) is more impressive,” Kobach said.

University of Kansas law professor Stephen Ware told the committee that he sees three major flaws in the current system.

“The current system is undemocratic, the second problem is it is extreme and the third problem is it’s secretive,” Ware said. “You don’t need to trade off judicial quality against democratic legitimacy.”

Sedgwick County District Judge Eric Yost acknowledged to the lawmakers that elections are “a lot of work, a lot of time, a lot of money.”

However, he added “The thing is democracy is a messy thing… but these appellate judges have enormous power over all of us.”

Judge Anthony Powell, recently elevated from the Sedgwick County district bench to the Court of Appeals, said it was “somewhat of an uncomfortable position” to testify in favor of changing the selection process, because his new colleagues generally favor the current system.

But, he said the question is simple: “Do free people have the right of self-government or not.”