I am a second class Kansan. You are probably a second class Kansan too, unless you happen to be a Kansas lawyer.

When it comes to selecting appellate judges in Kansas only lawyers have a vote in deciding the majority of the membership in the judicial selection commission. This powerful commission that makes the selections of the judicial candidates for appointment to Kansas’ top courts operates in the shadows. Most Kansans don’t know anything about this system because this lawyer dominated board meets behind closed doors so public knowledge, attention, and scrutiny about their votes cannot occur.

Naturally, many Kansas lawyers like this system. Linda Parks, the president of the Kansas Bar Association, said, “The current system is fair and inclusive and eliminates the raw politics that might otherwise taint the process. No reform is needed, because the system works well.” In recent commentary at www.kansasmeadlowlark.com Earl Glynn reported that the current judicial selection committee is dominated by left wing lawyers and liberal activists.

Since the average Kansan is largely excluded from any role in selecting members for this powerful board and this board excludes any public reports on their voting or deliberations, it is not possible to determine how well this commission actually works. Ms. Parks and myself attended the December 4 meeting of the Federalist Society where Professor Stephen Ware gave a public lecture about Kansas judicial selection.

This well attended meeting was filled with lawyers, judges, and other people like myself with a strong interest in the Kansas judiciary. Professor Ware asked this audience about any knowledge the folks at this meeting had about judicial selection under the current system. With the exception of one person who had served on the judicial nominating commission, no one had any direct knowledge of how the current process is actually working.

Ms. Parks asserts that the current system eliminate politics from the judicial selection process. I disagree. The politics has just shifted to a small elite of lawyers. These are mainly politically active left wing lawyers. We have simply removed the Kansas public and disenfranchised them in this process.

The closed door selection process has not worked well. We have had a number of judicial embarrassments under this process. I would cite Associate Justice Lawton Nuss who was penalized for a serious ethics violation concerning the Montoy case in front of the Kansas Supreme Court. We have had other associate justices who should have also recused themselves when they had an ethical conflict on their cases. We also have a chief justice who has trouble staying awake during oral arguments. I was embarrassed for my state when I attended oral arguments in front of this state’s top court and saw this happen first hand. Recently, news reports indicated that the Kansas Supreme Court had begun holding hearings behind closed doors in a controversy involving former Attorney General Phill Kline. The current system is not working well when closed door judicial processes like we might see in places where the rule of law is in jeopardy like Venezuela or Moldova, are now becoming commonplace here.

Until recently, Kansas had five of seven judges on the state supreme court were registered Democrats. None were registered as independents and this segment of the electorate is not represented on Kansas’ highest court. I must note that Justice Marla Luckert has recently re-registered as a Republican and the partisan major party balance has now shifted with this change.

A small, self selected elite of about 8,000 attorneys should not dominate judicial selection for 2.7 million Kansans. Non lawyers should lose their second class status in Kansas. The closed door selection system in Kansas needs the light of day to be thrown open on judicial selection for all judges in Kansas. By doing so we can eliminate this second class legal status that now exists for almost all Kansans.