Electing Kansas Supreme Court Justices.

In her May 13 legislative update Senator Tyson supported changing the current nomination process for selecting Supreme Court justices.  She supports electing our Supreme Court justices.  The issue will appear on the August 2026 ballot.  She alleges the current system came about because Kansas voters were thought “not smart,” that the nominating process is unfairly dominated by lawyers, that it lacks transparency, that it promotes “judicial activism” and that it has failed based on overturn rates of  Kansas cases heard by the U.S. Supreme court.  Please read her update and let’s unpack what she said.

The current nominating process came about in 1958 after then-governor Hall conspired with his lieutenant governor and a retiring supreme court justice to get himself appointed to the supreme court. (His action was labeled The Triple Play.)  Subsequently, informed and intelligent Kansas voters supported the constitutional amendment defining the current judicial nominating process and have continued to support it since 1958.

The judicial nominating committee is composed of nine people.  Two people from each of the four congressional districts.  One is a lawyer elected by lawyers in their district. The second person is a non-lawyer appointed by the governor. The chairperson is a lawyer elected by a vote of all eligible lawyers across the state.  The committee vets and selects three candidates.  From these three the governor choses the Supreme Court justice.  The process is transparent. All committee meetings are open to the public and press and responsible to the Kansas open records act.  While no process is perfect this system gives equal representation to all areas of the state, it balances political influence and it avoids voting domination by large population centers.

It’s important to note that a Supreme Court justice stands for a vote of retention after their first year and every six years thereafter.  We as voters therefore decide to retain or not based on an actual record not on campaign promises and special interest group influence as happens with elected politicians.

Senator Tyson states the nominating committee process has failed because of the number of Kansas cases overturned at the U.S. Supreme Court level.  She states that it is “alleged” Kansas has the highest overturn rate per capita of any state.  How do you even interpret this?  The study is statistically skewed both by population bias and the fact the upper court does not hear all Kansas cases but picks and choses the ones it wants.  A better study done by Washington University found that since 1966 the Kansas overturn rate was 66%.  The national average was 77%.

Senator Tyson next implies elected judges would be less likely to engage in judicial activism.  So ask yourself if a judge who made campaign promises and was supported by a large dollar special interest group, often with out of state ties, (think the recent Wisconsin supreme court election) would be more or less likely to engage in judicial activism?   Senator Tyson goes further implying our appointed judges will be judicially active by conflating them with German judges from the 1930s.  Those judges were antisemite, Nazi sympathizers appointed by Adolf Hitler.  Is that really the comparison she wants to make?

To further illustrate her concern that cases heard by appointed judges are overturned at the U.S. Supreme Court level and that appointed judges are judicially active the Senator sites the court case of Kansas vs Gonzales.  The case involves an undocumented immigrant using falsified federal and state forms. Obviously a hot button example.  Please read the case yourself.  It does not represent judicial activism protecting an undocumented immigrant.  Rather it is a case defining if a federal law, the Immigration Reform and Control Act, supersedes Kansas law.  It was overturned by a 5-4 decision.  What the case actually represents is the system working the way it was designed.

Electing Supreme Court justices will introduce partisan politics, special interest group and outside the state dark money influence into the selection process.  Preserving our system of checks and balances is critical.  Electing justices is a bad idea.

Randy Nichols