The rule of law is about process. Lawyers work within the judicial process on a daily basis. We understand that a fair and even-handed process promotes a fair and even-handed result, typically the correct result.
Americans have faith in the checks and balances within our democracy. We elect our legislators to enact the statutes desired by the majority. We elect our gubernatorial and presidential executives to enforce those statutes. However, the critical check upon the majority’s control of statutory enactment and enforcement is a fair, impartial and independent judiciary. That fairness and impartiality is achieved through a judicial selection process, which concentrates solely upon judicial, and not political, qualifications.
The Kansas merit selection system has come under increasing attack over recent months. Proponents for change argue that the 1958 Kansas constitutional amendment, which adopted merit selection, places too much power in the hands of attorneys because attorneys constitute a one-person majority of the panel seats. Proponents for change advocate elections or a gubernatorial appointment system premised on the federal model as a means of avoiding this perceived "attorney control" of the merit selection panel.
On Dec. 7, the Board of Governors of the Kansas Bar Association adopted a daring and innovative resolution, a resolution reinforcing our faith in a fair and even-handed process. The KBA adopted the following resolution:
RESOLVED, that the Kansas Bar Association supports the merit selection system for appellate judges and justices, independent of how merit panel members are selected. The present application, interview, questioning and selection process provides the best available information to identify and select the most qualified appellate judges and justices, independent of political considerations.
Our merit selection process requires that each open appellate position be advertised to all Kansas registered attorneys. Typically, 20 or more attorneys apply. Applicants file detailed questionnaires. A detailed investigatory process ensues, with panel members contacting each applicant’s references, opposing attorneys and judges on the applicant’s recent and most important cases, local attorneys and business contacts, neighbors and persons within the charitable and institutional organizations, which the applicant serves. Background checks on the applicant’s credit history, criminal record and civil record are performed.
At the conclusion of this most thorough investigation, the panel conducts oral interviews of the leading candidates. After consultation and discussion, the committee forwards a panel of the three most worthy candidates to the governor for selection.
The process is thorough and complete. It generates information unavailable to the executive and legislative branches and to the general public. It promotes applications from the best and the brightest legal minds across the state of Kansas. The process, while thorough and public, is not subject to the slings and arrows of a legislative confirmation hearing or to the half-truths or outright lies of one’s political opponents.
Attorneys know that process can reduce the vagaries imposed by personality, political affiliation, or popular belief. The Kansas Bar Association’s resolution reflects that belief. By adopting the resolution, the KBA has endorsed a process that works. We, as lawyers, know that the merit selection process will work, whether attorneys are appointed to selection panels or not. One need not be an attorney to vote one’s conscience for the three candidates who could best serve our appellate judiciary. The KBA’s recent resolution reinforces its faith in the merit selection process, a process that has generated a remarkably fine Kansas appellate judiciary for the more than 50 years.
Lee Smithyman is president of the Kansas Bar Association.