Updated on April 3, 2022
The Least Democratic Option: How Kansas Fills Vacant Supreme Court Seats￼
Marshall is a 3L at University of Kansas School of Law. He is a second-career law student with nearly a decade in various operational management roles. Outside of law school, Marshall enjoys watching sports, playing fantasy football, and spending time with his wife and dog.
Kansas is unique and special in many ways. One such way that many Kansans are unaware of is that Kansas is the only state in country that gives members of its bar majority control to select justices on the state’s highest court. In fact, “[t]his extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country.”[i]
The Kansas Constitution outlines the process by which Kansas Supreme Court vacancies are filled.[ii] First, a nominating commission composed of five lawyers chosen by members of the bar and four non-lawyers appointed by the Governor review applications and interview applicants before selecting three names to send to the Governor. The Governor must select one of the three who then becomes a justice on the state’s highest court. There is no senate confirmation of appointees as in the federal model.
There is value in input from members of the bar in evaluating applicants’ relative merits as members of the bar are likely more familiar with an applicant’s legal abilities than the general public might be. There would also be value in all Kansans, not just the fewer than 10,000 members of the bar, having a meaningful and democratic say in the selection of their Supreme Court Justices.
White men and women are overrepresented in the bar and “nearly all people of color are underrepresented in the legal profession compared with their presence in the U.S. population.”[iii] Conversely, people of color are disproportionately impacted by the Kansas criminal justice system.[iv] Given that the majority of the Kansas Supreme Court’s docket involves reviewing criminal convictions, it begs the question whether the current model adequately serves the interests of all Kansans. A person of color has not yet served as a Kansas Supreme Court Justice.
In addition, many Kansas Supreme Court decisions affect all Kansas citizens, not just lawyers. For instance, the Kansas Supreme Court plays an important role in interpreting, defining, and protecting a growing list of unenumerated liberty interests in the Kansas Constitution. If governments truly “deriv[e] their just powers from the consent of the governed,”[v] it might be time to ask whether the governed should have a more representative, or even direct, say in the selection of Kansas Supreme Court Justices.
[i] Stephen J. Ware, The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court, 18 Kan. J.L. & Pub. Pol’y 392, 392 (2009).
[ii] Kan Const. Art 3, § 5.
[iii] American Bar Association, Profile of the Legal Profession (2021).
[iv] Kansas Profile, Prison Policy Initiative, www.prisonpolicy.org/profiles/KS.html (last visited Mar. 31, 2022)
[v] The Declaration of Independence (1776).