Plan to Elect High Court Justices Scrutinized

By Anna Kaminski, Kansas Reflector

Changing the way Kansas Supreme Court justices get on the bench is a way of “giving power back to the people,” according to Senate President Ty Masterson.

Others fear electing justices would mean increasingly dark and divisive elections.

Masterson and a group of Senate Republicans in early March celebrated the passage of Senate Resolution 1611, which would give Kansans the choice of ditching the nomination and appointment system currently used to select state Supreme Court justices. It proposes allowing justices and candidates for the court to make political contributions and take part in political campaigns as a part of a popular vote election.

But first, Kansans must choose if it’s a change they want to make.

The proposal is a familiar one. Attempts to rework the judicial selection process in favor of bolstered legislative control have failed several times over the past two decades — most recently in 2022 and most notably under the leadership of former Republican Gov. Sam Brownback in 2016.

Former Kansas Supreme Court Chief Justice Lawton Nuss underwent the nominating and appointment process in 2002. More than a decade of his 17 years on the bench were spent as chief justice.

Nuss said if he had to campaign in a partisan election to sit on the state Supreme Court, he likely wouldn’t have tried to become a justice.

“Raising millions of dollars like in other states’ supreme court elections, feeling beholden to my contributors, and campaigning on what I would do if elected were my reasons years ago,” he said. “I stand by them today.”

State supreme court justices take an oath to be loyal to the state constitution, the “people’s document,” Nuss said.

Democrats, advocates and critics of the switch say that not only are elections at risk of being flooded with dark money and political interests, but issues protected by court decisions including abortion rights, voting rights and public education funding also run the risk of being toppled.

Davis Hammet, president of Loud Light Civic Action, said the challenges to the judicial system are important to understand. The Kansas Supreme Court has acted as a “final safeguard” for Kansans, he said.

“It’s not about people. It’s about raw political power,” Hammet said.

Supermajorities in both chambers and a conservative leadership determined to push a shared legislative agenda this year could mean that Republicans have a real shot at putting the question to voters. A change to justice selection requires a constitutional amendment, which only can occur in Kansas with voter approval and support from a two-thirds majority in both houses of the Legislature. It does not require the governor’s signature.

The resolution is awaiting a hearing in the House, which is scheduled for Thursday. Senators passed the resolution in early March with the exact number of votes needed to constitute a two-thirds majority.

Track record

Dissatisfaction with Kansas’  justice selection process often shares company with a distaste for state Supreme Court decisions.

Sen. Mike Thompson, a Johnson County Republican, described the merit-based selection process as insulated and opaque.

“If you get a nominee who takes the bench, we don’t have any way to deal with the bad decisions that may come out of that decision process,” Thompson said during a March 5 debate on the Senate floor.

He said “Kansas has the most overturned supreme court in the nation,” citing data that showed 87% of Kansas Supreme Court decisions since 2007 that were heard by the U.S. Supreme Court were overturned.

“That fact alone should be disturbing and concerning,” Thompson said.

David Morantz, a Kansas City attorney and former president of the Kansas Trial Lawyers Association, said Thompson’s claims were misleading.

From 2019 to 2025, of the 73 cases decided by the Kansas Supreme Court and up for review by the U.S. Supreme Court, only five were accepted, Morantz said, referencing publicly available data from the U.S. Supreme Court and Washington University in St. Louis. Going back to 2007, the denial rate remains largely the same, he said.

“In isolation, you can toss out almost any stat to try to make something look poor,” Morantz said. “Here, though, you can’t just look at the overall reversal rate in isolation.”

Since 1966, when a majority of Kansas Supreme Court justices were appointed by merit selection after the state switched its selection method in 1958, the Kansas Supreme Court case reversal rate is 66%. Nationwide it was about 77%, Morantz said.

He said he worries the push to change justice selections in Kansas is indicative of a national trend of taking aim at the judiciary and threatening the rule of law.

“I think that the forces who have pushing this judicial elections change have long been upset with the decisions of the Kansas Supreme Court,” Morantz said.

While Republicans say their polling data shows Kansans favor the change, Morantz pushed back. He argued that an attempt in 2008 in Johnson County to elect district judges failed with about 59% of voters against it shows Kansans aren’t demanding change. Kansas is not an outlier in its selection system, Morantz said. Thirteen other states select justices in a similar fashion.

Current system

Republicans characterize the current selection system as “elitist” because of the Supreme Court Nominating Commission’s makeup.

The nine-member nominating commission consists of five lawyers and four people selected by the governor, representing each of the state’s congressional districts. The commission sends three names of prospective justices to the governor, who then chooses a nominee to appoint. Nominees must be at least 30 years old and a practicing lawyer in Kansas for at least 10 years. After a justice’s first year on the bench and every subsequent six years, they face a retention vote.

Gov. Laura Kelly, a Democrat, has appointed three justices during her tenure — one in 2019 and two in 2020. The current makeup of Kansas’ seven-justice Supreme Court leans moderate with three Kelly appointees, two appointees from Democrat Gov. Kathleen Sebelius, one Brownback appointee and one appointee from former Gov. Bill Graves, a moderate Republican.

Nuss, who retired from the bench in 2019, told The New York Times in 2016 that the current system of selecting justices is “superior to other models.” Regarding retention votes, he said, “I don’t know how much more democratic you can get.”

“And that’s still my position,” he recently told Kansas Reflector.

He equated the justice selection process to gymnastics. He asked how one knows that 11-time Olympic medal winner and 30-time World Championship medal winner Simone Biles is the best gymnast in the world.

“It’s a competitive process that’s based on your merit,” he said of both gymnastics and Kansas Supreme Court justice selection process. “It’s not based on who you know or how much money you’ve raised.”

In Wisconsin, where state Supreme Court justices are elected through nonpartisan elections, an election at the end of March will determine if the court maintains its liberal majority. Donors to the two candidates’ campaigns are poised to top the previous $51 million spending record.

Masterson and other top Republicans emphasize the proposed change in Kansas is about the people’s right to vote.

“You know, you get to decide who your governor is. You get to decide who we are in the Legislature,” Masterson said at a news conference in early March. “But nobody gets to decide other than those few who really gets to make it on the high court.”

If the House votes on the resolution and two-thirds of the members support it, the question would appear on voters’ ballots in August 2026.