Commentary: Supporters of Supreme Court amendment hide potential political corruption under guise of 'democratic' vote

Retired 6th District Court Judge Richard "Dick" Smith speaks to a group about proposed amendment to the Kansas Constitution during a recent event. Voters will vote on whether to change the current system of choosing justices for the state Supreme Court. (Photo by Roger Sims / Linn County Journal)

By Richard "Dick" Smith

Retired 6th District Court Judge

Kansas voters will be asked to decide on Aug. 4 whether the system of choosing justices should be changed. The leadership in the Kansas Legislature is hoping that voters will fill in the “yes” blank. A “yes” vote means that candidates for Supreme Court justice would run expensive campaigns to be elected to the state’s high court. That means those candidates will owe favors to contributors who put them in office.

For me and many of us who are concerned about the impact changes to the amendment would make to the decisions made by the Supreme Court, the answer would be to vote “no” on the amendment.

Persons voting on August 4 might ask themselves the question: “When the proponents of this amendment to change the selection of Kansas Supreme Court justices seem to be clamoring for more democracy, why did the Legislature choose to ask for a vote on a constitutional amendment during the primary election as opposed to the general when we know more Kansas voters vote at general election than primaries?”

The answer is simple: They feel that if the question was posed to all Kansas voters in November, the amendment to the constitution would fail.

I ask that voters consider one additional question: “Do Kansans want their Supreme Court justices chosen on merit or do we really want the kind of justice only money can buy?”

Educating people on the impact of a potential constitutional amendment might be compared to being in the position of Elizabeth Taylor’s seventh husband. You know what to do, you just don’t know how to make it interesting. Still, this is truly worth our interest as the proposed constitutional amendment regarding the selection of Supreme Court justices represents the most radical change to Kansas government since at least 1957. That was when the Kansas Constitution was modified to provide for the current selection method. Understanding why the 1957 change was made should make Kansans question the true motivations of the people pursuing this proposed constitutional amendment.

Kansas elected Supreme Court justices from 1861 until 1957. In 1956 the governor was Fred Hall. Gov. Hall was so unpopular he lost in the primary for his bid for reelection. The chief justice of the Supreme Court, William Smith, was a friend and supporter of Hall. Eleven days before the end of Hall’s lame duck term the plan was set into motion. Hall and Smith conspired to simultaneously resign. That propelled the lieutenant governor to governor, and the new governor promptly appointed the now former Gov. Hall to the position of justice of the Kansas Supreme Court, Smith’s resignation having conveniently created a vacancy.

The citizens of Kansas were so outraged over this political scandal (dubbed by the papers as the “Kansas Triple Play”) that the Legislature quickly passed – and the people overwhelmingly approved – an amendment to the Kansas Constitution providing for the current “merit selection” of Supreme Court justices.

The proposed amendment that voters will decide on Aug. 4 potentially returns Kansas to the same system that allowed such a scandal (possibly even worse). This begs the question as to the true motivation behind those seeking to return to a politicized system Kansans found so wrought with the possibility of manipulation and scandal.

Merit system vs. political system

The current system provides for selection of Supreme Court justices based on merit (hence the delineation between “merit” as opposed to “political”). There is a  Supreme Court Nominating Commission comprised of two residents from each congressional district. One is a lay resident-member appointed by the governor and the other is an attorney resident of the district, elected by the attorneys of that congressional district.

This ensures statewide, both rural and urban, both lawyer and non-lawyer representation.

In addition, there is an “at large” chair elected by attorneys statewide. When a vacancy on the Supreme Court is created by retirement (there is a mandatory retirement age of 75), death or disability, all attorneys in the state are notified of the open position. Interested attorneys then begin an arduous and thorough vetting process. The application itself is intense – it is now apparently approximately 100 pages. The commission then begins its process of narrowing down to the most qualified. To be a finalist one must pass inspection of their entire past, allowing releases of all financial and personal information and a thorough investigation by both the commission and the  Kansas Bureau of Investigation. The commission then selects three persons they feel are the most qualified and submits those names to the governor.

Maybe one of the proponents’ motivations is that they are unhappy with the fact that since 1956 Kansans have chosen to elect seven Democratic governors as opposed to only six Republicans. If that is their issue, democracy and the “voice of the people” can’t really be their concern. In any event, the governor then chooses which of the three nominees should serve. Every six years every Kansan in the state is given the opportunity to vote on whether that Supreme Court justice should retain office. That election is totally non-partisan. Only under extremely limited circumstances is a justice allowed to have ANY campaign whatsoever. People are allowed to organize and mount a campaign not to retain. We all have a voice, it’s non-partisan.

Cons of relying on popular vote

The political election of Supreme Court justices will effectively eliminate the in-depth background search process currently vetting legal ability, ethics, potential personal problems and so forth. Any attorney, qualified or unqualified, may be allowed to run and win. In addition to the possibility of a scandalous situation as occurred in 1956, the politicalization of the Kansas Supreme Court is fraught with other difficulties. The following are just a few.

The first is the obvious. Any statewide political campaign will be time-consuming and expensive. It is generally recognized that qualified applicants, with whatever number of years of experience the Legislature determines is necessary, will predominately come from one of two categories. Those categories are people with successful law practices (assuming unsuccessful attorneys might not be the best and the brightest) and attorneys with the experience of being a sitting District Court judge or judge of the Court of Appeals.

No one should want a sitting judge to shirk their responsibilities to hear and decide cases so that they could engage in the time-consuming endeavor of a statewide election. That eliminates an entire pool of potentially qualified candidates. Attorneys with a successful practice would have the issues of abandoning their cases, clients and income.  In essence this constitutional amendment may limit the field of potential candidates to those who literally have nothing better to do than to spend their time politicking for votes.

The exception to that last remark would be those being bank-rolled by special interest, so called “dark money,” and persons of extraordinary wealth. In a 2024 campaign in Wisconsin the total campaign expenditures for one seat exceeded $100 million. People who run campaigns know that the candidate that spends the most wins between 80% and 90% of the time. It is obvious that any successful candidate in the statewide election in the modern era could have to raise millions of dollars thereby opening the doors of improper influences by out-of-state (even foreign) donors and persons or entities with vast monetary resources.

The second problem with the proposed constitutional amendment is how it actually deletes a detailed process originally voted on and passed by Kansas voters and effectively writes a blank check to the Kansas Legislature. By eliminating the detailed process spelled out in our constitution, the amendment would simply allow the Legislature to develop each year whatever rules and regulations to be imposed in order to elect and fill vacancies in the Supreme Court. This will allow the Legislature each session to engage in political tinkering with all rules regarding selection. That leaves all the rules of the game to the complete whim of the Legislature whenever it chooses without returning to the people of the State of Kansas for their input.

Thirdly, it is widely reported that after the majority of Kansas voters rejected a constitutional amendment regarding abortion Attorney General Kris Kobach said “the quiet part out loud” by informing the minority of Kansas voters opposed to freedom in  medical decisions that he would press the Legislature for the political selection of judges so that the conservative minority in the state of Kansas could quietly change the composition of the Supreme Court. Any suggestion that this is about majority rule and enhanced democratic principles is simply not honest. It is an insidious attack on majority rule which will have the additional impact of allowing megadonors to control the highest court in Kansas.

Finally, and most obviously, it will convert our current non-partisan Kansas Supreme Court into a group of purely political animals. This opens the door for single issue “litmus test” candidates who may have a position on one issue voters are interested in while being completely unqualified to consider many cases decided by the court. Our Supreme Court must rule on issues covering all the intricate issues involved in civil actions, criminal cases, administrative appeals and the other vital work of the court.

When the election of a justice went wrong

When I moved to Linn County in 1982, a mentor made me aware of the story of Stephen Allen. He came to Linn County 100 years before and lived in Pleasanton, Kansas, which was then suffering the effects of the horrible drought of the 1880s. He became a member of the People’s Party. It was a “populist party” and it gained a statewide influence because of the economic impact of the drought. They were concerned with federal monetary policy, the number of farm foreclosures, influence of powerful corporations like railroads and telegraph monopolies, democracy, and many other issues.

Allen became the Circuit Court Judge. He literally “rode the circuit” traveling by horseback to the other county seats in his district (which then included the little village of Olathe). Judge Allen, as a member of the People’s party, was elected Supreme Court Justice.  At that time there were only three members of the Kansas Supreme Court (unlike the seven we have now) so his influence over decisions was substantial. The story of Justice Allen is very telling. Legal scholars have written his decisions were extraordinarily even-handed. Even when the opportunity presented itself he did not blindly advance the political platform of the People’s Party.

On the contrary, his rulings appear to have been made according to the law, whether or not it was in favor of or opposed to the interests of the banks, railroads, and other institutions with which the People’s Party took great issue.

Despite what might be described as a remarkable tenure evidenced by a lack of bias and superb legal insight, Allen was promptly voted out of office the first time he came up for reelection. A reasonable explanation appears to suggest that Allen was voted out because he didn’t follow the political winds at the time but instead chose to apply the law fairly and without bias.

Supreme Court justices should be chosen to apply the Rule of Law, without bias or favor, not to advance a political agenda.

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