Stephen J. Ware
In a democracy like ours, should lawmakers be selected democratically?
Not according to a Nov. 23 Lawrence Journal-World editorial “Court, politics,” which wants some of our state’s most important lawmakers selected in a deeply undemocratic process that makes the votes of some residents count far more than the votes of others.
The lawmakers in question are our state’s appellate court judges.
Judges are lawmakers? Yes. Judges have routinely made law throughout our country’s history and even earlier, going back to England. This judge-made law, called the “common law,” has generally worked well and continues today to govern thousands of cases including those involving contracts, property rights and bodily injuries.
Common law rules differ from state to state. States with more liberal judges tend to have more liberal common law, while states with more conservative judges tend to have more conservative common law. The political leanings of appellate judges, rather than trial judges, are especially important because appellate judges have much more power over the direction of the law.
In short, the appellate judges of Kansas, like those of other states, are tremendously important lawmakers. What is unusual about the lawmaking judges of Kansas is how they are selected. None of the other 49 states uses the system Kansas uses to pick its two appellate courts. And for good reason, because the Kansas system is a shockingly undemocratic way to select lawmakers.
At the center of the Kansas system is the Supreme Court Nominating Commission; most of the members of this commission are picked in elections open to only 10,000 people, the members of the state bar. The remaining 2.8 million people in Kansas have no vote in these elections.
This violates basic equality among citizens, the principle of one-person, one-vote. The current system elevates one small group and treats everyone else like second-class citizens.
Kansas lawyers tend to be fine people but they’re not superheroes. They don’t deserve more power than lawyers have in any of the other 49 states. In a democracy, a lawyer’s vote should not be worth more than any other resident’s vote.
So the problem is not that Kansas has a nominating commission but how that commission is selected. As Washburn law professor Jeffrey Jackson wrote, democratic legitimacy “would appear to favor a reduction in the influence of the state bar and its members over the nominating commission because they do not fit within the democratic process. Rather, the more desirable system from a legitimacy standpoint would have a greater number of the commission’s members selected through means more consistent with the concept of representative government.”
Bar groups in Kansas claim that this violation of our democratic principles is the only way to get competent judges. But the bar provides no evidence that judges selected in lawyer-favoring systems are better than judges selected in the more open and democratic appointment systems used by a dozen other states. Kansas should follow those states’ lead so that our state’s courts can have democratic legitimacy as well as professional competence.
Stephen J. Ware is a professor in the Kansas University School of Law.