Judges are lawmakers


Kansas University Law Professor Stephen J. Ware is the foremost authority on the method of judicial selection in Kansas and the need for reform. His paper on this topic is Selection to the Kansas Supreme Court, which is published by the Federalist Society for Law and Public Policy Studies. Further reporting by me is at Kansas judicial selection needs reform, says law professor.

The Kansas House of Representatives has passed a bill that would reform the way judges are appointed to the Court of Appeals. Now one person, Tim Owens, an attorney and Republican from Overland Park, chair of the Senate Judiciary Committee, is blocking progress on this bill.

The following article by Ware explains why reform of the method of judicial selection in Kansas is so important.

In a democracy like ours, should lawmakers be selected democratically?

Not according to Judge Richard Greene.

In the judge’s Feb. 2 guest column in The Capital-Journal, he supported a process in which some of our state’s most important lawmakers are selected in a deeply undemocratic process that makes the votes of some citizens 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 9,000 people — the members of the state bar. The remaining 2.8 million people in Kansas have no vote in these elections.

This plainly violates basic equality among citizens, the principle of one-person, one-vote. The current system elevates one small group into a powerful elite and treats everyone else like a second-class citizen.

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 citizen’s vote. As Washburn law professor Jeffrey Jackson writes, 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.”

Kansas should break the grip its bar holds on the selection of our state’s lawmaking judges. Fortunately, the Kansas House of Representatives has passed a bill that would do just that.

Will this responsible, moderate reform be enacted by the Kansas Senate?

Or will our state senators defend the deeply undemocratic view that a lawyer’s vote should count far more than another Kansas citizen’s vote?


3 responses to “Judges are lawmakers”

  1. T. Rex

    The common law has “. . . generally worked well and continues today to govern thousands of cases including those involving contracts, property rights and bodily injuries?”

    That’s a false statement, Bob, and you should really study something before you make your talking points. There are many statutes that control contracts, property rights and tort cases. For example, there is an entire body of law under the Uniform Commercial Code, which Kansas adopted years ago. That has absolutely nothing to do with the common law of England.

  2. Daniel

    T. Rex, did you not read the whole post? These were not Bob’s words. Bob simply posted an article by Stephen J. Ware, KU Law Professor. If you disagree with the statement, you’re disagreeing with Prof. Ware, not Bob Weeks. The appointment of appellate judges in Kansas is dominated by the Bar Assoc., which creates problems for Kansas and its citizens. Prof. Ware is a lawyer willing to criticize the law that puts the Bar in control of our Appellate Courts. Bravo, Prof. Ware. (By the way, what are your legal bonafides–where’s your law degree?)

  3. Ictator

    I’d just like to see the election results when the lawyers vote. It wasn’t available on the KS bar assoc.’s web site when I checked it.

    Even in the old Soviet Union, they’d publish the election results, no matter how fraudulent. Maybe the KS bar will catch up.

    Maybe the soporific KS news media will notice. They claim to seek transparency and openess. What is more “transparent” than election outcomes?

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