BY: SHERMAN SMITH
Kansas Reflector
TOPEKA — Senate Republicans are taking an effort to make the Kansas Supreme Court an elected office, dismantling a decades-old merit-based nomination system for justices that voters put in place after a notorious scandal.
The move is largely a response to a high court decision establishing the right to terminate a pregnancy and three decades of court-imposed compliance with a constitutional mandate to provide suitable funding for public schools.
If adopted with two-thirds majorities in both the Senate and House, Senate Concurrent Resolution 1611 would place a loaded question before voters on the 2026 general election ballot. The question would ask voters to replace the current nominating commission, “whose membership consists of a majority of lawyers,” with direct election of justices. The seven justice seats would be divided among the 2028, 2030 and 2032 elections, and terms would last six years.
Republicans and special interest groups that align with Republicans favor the change, which they say would shift power from an elitist organization to the people. Opponents raise concerns about reshaping the court through partisan politics and the dark money that dominates political campaigns.
“It’s putting politics where they belong,” said Senate President Ty Masterson, an Andover Republican. “They’re going to tell you, ‘Oh, it’s putting politics in the system.’ Politics are in the system. That’s the worst kind of politics. It’s veiled. It’s in the black box, you know, behind the closed door.”
Under the current system, the Supreme Court Nominating Commission reviews applications for a vacancy and sends three finalists to the governor, who makes the appointment from those three finalists.
The commission members include one lawyer and one nonlawyer from each of the state’s four congressional districts, plus an additional lawyer who serves as chair. Kansas Bar Association members elect the lawyers who serve on the commission, and the governor appoints the nonlawyers.
The commission considers experience, education, ethics, temperament, community service, impartiality and respect of colleagues when selecting the three nominees to send to the governor.
Each justice faces a retention vote in the next general election after appointment, and again every six years.
The triple play
The system was put in place following a 1950s political scandal known as “the triple play.”
Gov. Fred Hall, viewed as liberal Republican for the era, was defeated in the 1956 primary after a single two-year term. Democrat George Docking won in the general election.
Chief Justice Bill Smith, a supporter of Hall who was prepared to retire, decided to step down before Docking took office so that Hall could resign and take his seat. Smith and Hall resigned on the same day, allowing Lt. Gov. John McCuish to be sworn in as governor and appoint Hall to fill the Supreme Court vacancy.
Hall resigned from the court the following year so he could run again for governor, but again lost in the GOP primary.
During the 1957 session, the Legislature passed a constitutional amendment that established the current merit-based system. About 70% of voters approved the constitutional amendment in 1958.
In recent years, Republicans scrutinized the system in frustration over Kansas Supreme Court decisions that require the Legislature to adequately and equitably fund public schools. The 2019 decision that established a constitutional right to abortion, and voters’ rejection of a constitutional amendment on abortion in 2022, fueled renewed interest in abolishing the merit-based system for nominating Supreme Court justices.
But Republicans haven’t been able to agree on whether to support the election of justices or adopt the federal model, where high court appointments are subject to Senate confirmation.
In a hearing Tuesday before the Senate Federal and State Affairs Committee, attorney Josh Ney noted that no Supreme Court justice in the past 22 years had retired while a Republican was governor. Democratic governors have selected all but one of the justices during that period, with Republican Gov. Sam Brownback appointing his chief counsel, Caleb Steagall, to the court to fill a vacancy by a justice who was appointed to a federal court seat.
“We have traded the triple play for systemic double plays,” Ney said.
The opposition
Fred Logan, who appeared before the committee on behalf of the Kansas Bar Association, said Kansas voters “knew exactly what they were doing in 1958 when they installed the merit selection process.”
He pointed to the fact that no justice has lost a retention vote as evidence that the process works.
“I trust Kansas voters,” Logan said.
Blake Shuart, an attorney with the Wichita-based Hutton Law Firm, said lawyers in the state want to protect a system that has served their clients well, win or lose.
In the past year, Shuart said, the Kansas Supreme Court has issued decisions on 31 criminal cases, seven attorney discipline matters, three individuals who were seeking compensation for wrongful conviction, and cases dealing with parentage, tax valuations, a zoning code, a gambling license, a public nuisance issue between two farmers, and other matters.
“This is not a day in, day out job by our justices to press the lever on state politics, decide elections, school funding, reproductive rights, or any other things,” Shuart said. “Those cases do come around every so often, but what they do every day, week and month of the year, is roll up their sleeves, read briefs, learn cases, ask good questions, listen to good lawyers, argue, deliberate, decide cases fairly based on even-handed application of the facts to the law, and then they sit down and have to write a long opinion.”
Rashane Hamby, policy director for the American Civil Liberties Union of Kansas, said the proposed resolution would inject politics into the courts and erode public trust in the judiciary.
The change would threaten the rule of law, weaken separation of powers, and allow special interests to influence the highest court.
“The Supreme Court should not be for sale to the highest bidder,” Hamby said. “If this passes, it will be a radical departure from Kansas’ longstanding commitment to judicial independence.”
Sen. Caryn Tyson, a Parker Republican, said justices in the past have run TV ads supporting a retention vote, which means money is already a factor. The ads she referenced were actually paid for and produced by entities that support the justices, not the justices themselves.
Logan, who has practiced law for 48 years, told Tyson the limited ads she had seen would be amplified with “huge sums of money” if justices were elected.
“Let’s not kid ourselves,” Logan said.