Michael Smith: Foes of judicial independence
Judicial merit selection was first adopted right here, in this part of the country. Will its death begin here, as well, in this year’s Kansas judicial retention elections?
The plan Kansas and many other states use is officially called the Missouri Nonpartisan Court Plan. While the details vary from state to state, the essential characteristics are these: When new judges must be appointed, a panel of attorneys chosen by peers will recommend a list of candidates — usually three — to the governor. For higher court appointments, these candidates usually have several years of experience serving in district or circuit courts. The governor then selects one of these candidates and that person begins serving. Periodically, voters decide whether to retain each judge. Judges are almost always retained. Kansans have never rejected a judge since the state began adopting merit selection in 1958.
The Missouri Plan’s name traces back to Kansas City’s “Boss Tom” Pendergast, whose Prohibition-defying, concrete-laying, Mafia-connected political machine once controlled Missouri politics and even reached into Kansas (particularly Wyandotte County). Finally fed up, in 1940 Missouri voters used the petition initiative, making the Show Me State the nation’s first to adopt merit selection. Many other states followed suit shortly afterward.
Here in Kansas, merit selection followed Gov. Fred Hall’s infamous “Triple Play.” After being defeated in the Republican primary for re-election in 1956, Hall resigned the governorship. Upon assuming the governorship, Hall’s lieutenant governor promptly appointed Hall as chief justice of the state Supreme Court. Kansas does not have a petition initiative, but the state Legislature reacted promptly. While they could not recall Hall, they did institute merit selection starting in 1958. It later spread to the appellate courts, and most district courts.
In 2013, the Legislature passed, and Brownback signed, legislation to remove the state appellate court from merit selection. Now, appellate judges are appointed by the governor and confirmed by the state Senate, just like the federal system that so often freezes in gridlock.