Kansas Republican lawmakers are considering a plan to boost transparency about commissioners that nominate candidates for the state’s Supreme Court. That’s despite the Legislature’s efforts to eliminate the panel altogether.
A Senate committee is expected this week to vote on a bill that would require certain records about applicants and members of the state's Supreme Court Nominating Commission to be open to the public, like names and cities of residence.
It would effectively overturn a Kansas Supreme Court rule that makes all records related to the nominating commission confidential. The rule allows the commission to release information about judicial applicants at its discretion, including names, degrees and cities of residence. The commission typically releases that information when it announces three nominated candidates for a position. However, the rule does not specifically address information about its own members.
The commission is a nine-member group consisting of a lawyer and nonlawyer for each of the state’s four congressional districts and another lawyer who serves as the chair. The governor appoints the four nonlawyer positions, and the five lawyer positions are elected by other attorneys.
The bill comes as lawmakers are also seeking to eliminate the nomination process altogether through a state constitutional amendment. In August, Kansas voters will decide whether to change the state constitution to allow for justices to be elected to the bench, rather than appointed.
That change could have implications on major issues decided by the Supreme Court, including abortion rights and school funding.
Josh Ney, an attorney who serves on a nominating commission for lower court positions, said he proposed the bill because he was denied information about who had applied to serve as the chair for the Supreme Court Nominating Commission last year.
Ney, who is also the Republican Jefferson County prosecutor, said he believed the rule was meant for the candidates for the Supreme Court, not the members of the commission who nominate the prospective justices. He said he was told by court administrators that the commission could not even disclose how many people had applied.
Ney told lawmakers that he thinks there is no good reason for shielding information about candidates for a public position.
“It sure looks like they're making decisions behind closed doors and they don't like the transparency,” Ney said.
No one filed testimony opposing the bill. Democratic Sen. Oletha Faust-Goudeau questioned whether the information was confidential for safety reasons.
But Republican Sen. Mike Thompson said the bill would only require the commission’s members to provide similar information required of other appointed state officials, like leaders of state agencies.
“When we have a nominee come before us, there’s certain things we can’t disclose,” Thompson said. “Certain protected information would still be protected. But this would allow for a lot more transparency.”
Ney, who supports the proposed amendment, acknowledged it may seem strange that he is calling for more transparency for a commission that he believes should be eliminated.
“I want our system of laws, while they're still in place, to be the best version,” he said, “and this would incrementally improve the (nominating) commission elections by adding transparency to a secretive process.”
Voters used to elect Kansas Supreme Court justices until 1958, when the infamous “triple play” scandal led to Republican Gov. Fred Hall stepping down only for his former lieutenant governor to appoint him to the Supreme Court shortly after.
The scandal led to the creation of the merit-based appointment process, using the nominating commission to select suitable candidates.
Currently, the governor appoints Supreme Court justices from a list of three candidates nominated by the commission.
Democratic Gov. Laura Kelly has appointed four justices during her two terms, and is likely to nominate another when Justice Marla Luckert retires this year. That would ensure a majority of the court's seven justices were Kelly appointments by the time she leaves office, likely keeping the court’s liberal-leaning nucleus in place for years.
Republican lawmakers who support the proposed amendment argue that voters should have a say on who is seated on the state court and the change would create more accountability for their rulings. It would also offer the chance for voters to remake the court with justices that more resemble the state’s heavily-Republican electorate.
Democratic lawmakers and some legal groups that are opposed to the amendment argued electing justices introduces partisan politics to the state’s courts and opens the door for expensive election campaigns driven by special interests.
The proposed changes also come after the court has repeatedly ruled that the state constitution protects the right to abortion in Kansas. Critics argue the move is another effort to overturn those rulings by kicking out justices and replacing them with anti-abortion replacements, despite voters overwhelmingly supporting the right to abortion in the state.
Kansas voters will decide on Aug. 4 whether to enact the change. If approved, Kansas would join 21 other states that select justices at the ballot box.
Dylan Lysen reports on social services and criminal justice for the Kansas News Service. You can email him at dlysen (at) kcur (dot) org.
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