News & Commentary

Should Kansas Supreme Court be elected? GOP pushes constitutional amendment

Republican lawmakers are getting closer to changing how Kansas Supreme Court justices are selected.

March 12, 2025

Republican lawmakers are getting closer to changing how Kansas Supreme Court justices are selected.

A proposed constitutional amendment for direct election of justices is halfway onto the ballot. The Senate passed SCR 1611 last week, sending it to the House.

Republicans say they want to give power to the people, but the move to elect justices comes amid GOP criticism of high-profile court rulings.

How Kansas Supreme Court justices are selected

The Kansas Supreme Court has seven justices. The current selection system uses a nonpartisan panel that interviews applicants and recommends three qualified finalists to the governor, who makes the final pick without Senate confirmation.

A majority of members of the panel are lawyers selected by other lawyers, while the rest are non-lawyers chosen by the governor. Justices do face retention elections and mandatory retirement at age 75.

The system was introduced via a constitutional amendment in the 1950s in response to a corruption scandal. Supporters have described it as "merit selection," but it has been criticized by opponents for giving too much power to unelected career attorneys.

Changing the system would require another constitutional amendment. That requires supermajorities of both the House and Senate, which would then put the question on the ballot at an election, where a simple majority of voters would be needed. The governor cannot veto a constitutional amendment.

Senate Republicans want elections for Supreme Court

Senate Republicans held a news conference Thursday after passing the constitutional amendment to elect justices.

"This is the most important constitution amendment we can do for future generations of Kansas," said Senate Majority Leader Chase Blasi, R-Wichita. "All we heard this last election cycle was about democracy, and this amendment allows the people of Kansas to directly elect their Supreme Court, like 22 other states do."

Senate President Ty Masterson, R-Andover, has long pushed to change the system.

"We're the only state in the union that empowers a group like that — five lawyers on a commission — to make that decision," he said. "You get to decide who your governor is. You get to decide who we are in the Legislature. But nobody gets to decide, other than those few, who really gets to make it on the high court."

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Sen. Mike Thompson, R-Shawnee, chairs the Senate Federal and State Affairs Committee and carried the legislation on the floor.

"It's not unique what we're trying to do here," Thompson said. "This is the way we did it for 100 years prior to 1958, elected our Supreme Court justices.

"This is going to be a much more transparent process. The people are going to get to decide. ... By electing the justices, you're going to have a much more robust discussion. The people are going to get to know who these judges are. They'll get to do their homework and make a choice."

Judicial selection reform follows controversial decisions

Republican Attorney General Kris Kobach has pushed for judicial selection reform, saying his office faces "hostile judges."

"Our current state Supreme Court is selected in a manner that makes it one of the most progressive supreme courts in the United States," Kobach told a Shawnee County GOP gathering in September. "I've argued in front of several of them, and our court is far to the left of the norm in state supreme courts. It's all because of the method we select our justices. We absolutely have to have a constitutional amendment to change that."

Thompson said he encourages people to "look at some of the decisions by our Supreme Court, some of the opinions."

"There's really only one justice that I see consistently refer to the Constitution when regarding making his opinions," he said. "So I think this is just far too important. If we're going to pass laws in this state and expect them to be followed, we want to have some assurance that the Supreme Court is going to make decisions based on the Constitution rather than overturning it on some other subjective opinion."

The most politically controversial opinions in recent years have been the Supreme Court's landmark ruling that abortion rights are protected by the Kansas Constitution — which prompted the failed Value Them Both amendment — and that public schools were unconstitutionally underfunded by the Legislature.

Thompson was likely referring to Justice Caleb Stegall, the most conservative member of the court. He dissented on the abortion decision and didn't participate in the education funding case.

"Republicans are unhappy with the backstop on their bad policies — whether it's school funding, whether it's reproductive rights, whether it's voting rights — so they want to be able to handpick who it is there," Senate Minority Leader Dinah Sykes, D-Lenexa, told reporters last month.

Masterson said it is other people's "projection" that the impetus is Republican lawmakers don't like the court's decisions.

"I do think we would get different decisions, though, because the people would be represented," he said. "It isn't about the decisions, it's about the people's right to vote."

Masterson argued that politics are already in the judicial selection process, but it is "behind the curtain" of the nominating commission controlled by attorneys. He said "there's politics behind who the governor would choose." If Kansas moved to a Senate confirmation model, "There's politics behind who the Senate would confirm."

"I'm for letting it be wide open. Why? Because that makes the people the jury," he said.

Democratic Gov. Laura Kelly would lose her appointment power under a judicial election system.

"Governor Kelly's position on the politicizing of the Kansas Supreme Court remains unchanged: the court must remain free from political influence so justices can uphold the Kansas Constitution and consider cases in the interests of Kansans, not political agendas," said Grace Hoge, a Kelly spokesperson, in a statement. "This type of politics has no place in Kansas and sidesteps the will of a majority of Kansas voters."

Eyes are on Kansas House Republicans

While Republicans have talked about judicial selection reform for several years, the GOP has been divided on how to approach it.

Direct election of Supreme Court justices is controversial, even among some Republicans, so some would rather move to the so-called federal model where the Senate confirms a governor's appointment.

"There are lots of Republicans who did not agree with it," Sykes, the top Senate Democrat, told reporters last week. "They actually would prefer the federal model, but they caved to leadership, and they voted to bring politics into our Supreme Court."

House Minority Leader Brandon Woodard, D-Lenexa, suggested there was a split among House Republicans that could be exploited by Democrats.

"Just look at the membership of the House Judiciary Committee," he told reporters last month.

But House Speaker Dan Hawkins, R-Wichita, told reporters earlier this session that he expected a direct election model "will be received very well."

"I feel confident in the House as well," Masterson said.

Before voters gave Republicans bigger supermajorities in the 2024 elections, GOP leaders were not as confident. When visiting the Shawnee County GOP election headquarters last year, Kobach said the Senate had the votes but the House did not.

Masterson told The Capital-Journal at that time that he wanted to pursue an amendment, but the Senate would not "waste our time" if the House didn't have the votes. Hawkins said at the time that the last time it was put to a vote in the House, "we came up significantly short."

More: In bid for GOP supermajorities, Kris Kobach urges judicial selection as issue

Legal organization oppose election of justices

The proposed amendment faces stiff opposition from a coalition of 17 organizations, including the Kansas Bar Association, the Kansas Trial Lawyers Association and the Kansas Association of Defense Counsel.

They argue that direct election would shift power "to special interests outside the state." They pointed to a Wisconsin Supreme Court race in 2023 where $51 million was spent, with much of that coming from out of state.

"What is happening in Wisconsin and other states should give Kansans good reason to be concerned," the coalition said. "Special interests and billionaires did not donate out of civic duty in Wisconsin. They did it to influence decisions made by the Wisconsin Supreme Court. And it worked. The next Supreme Court race in Wisconsin is already shaping up to be even more expensive, with national dark money groups lining up to buy influence."

The coalition argued that the nonpartisan commission process in Kansas is merit-based, with vetting to find the most qualified candidates and an ability for voters to kick a justice off the bench at retention elections.

The trial lawyers association argued that the nominating commission process shields judicial candidates from influence.

"By design, Kansas merit selection takes place far from the maneuvering of the political branches of government," the association said in testimony.

"Direct election of Justices will erode citizens' confidence that anyone bringing a case to court will receive the same treatment no matter what their financial, social, or political standing," the association added. "And it would undermine the trust that Kansans should have that our courts are courts of law, and not courts of grace, favor, and political paybacks."

Masterson said he is not surprised at the opposition from legal groups.

"Why would you want to give up power like that if you're part of that elite class?" he said.

He believes their opposition is about power over government.

"They're attorneys voting on people that are going to preside over their cases," Masterson said.

More: Legal groups and ACLU decry proposed partisan elections of Kansas Supreme Court

Senators argue judicial politics and impartiality

Sen. Ethan Corson, D-Fairway, who is an attorney, said in an explanation of vote that "judicial elections would unleash on Kansas a raft of special interest and dark money the likes of which our state has never seen. The voices of average Kansans would be drowned out in favor of the narrow concerns of the biggest funders.

"Unsuccessful litigants before the Kansas Supreme Court would be left wondering if their loss was due to the merits of their legal arguments or the number of zeroes on their opponent's campaign check. Instead of consulting the law books before rendering a decision, Justices would consult their pollsters, effectively becoming politicians in robes."

Sen. Kenny Titus, R-Manhattan, who is also an attorney, represents northern Shawnee County. He was among the 27 senators who voted for the amendment.

"I voted yes because I believe we can either pretend there are no judicial politics behind closed doors or we can bring those politics out into the open for everyone to see," Titus said in a newsletter. "The current nominating commission is controlled by five attorneys that are only elected by other attorneys and then four gubernatorial appointees. Ultimately, I voted to let the people of Kansas decide if we need a better system and I will respect that decision."

Sen. Brenda Dietrich, R-Topeka, was among a handful of Republican senators to vote against the amendment.

"While I acknowledge that the current method of selecting judicial candidates through a nominating committee is not without its flaws, this resolution does not offer a sound alternative," Dietrich said in her explanation of vote. "SCR 1611 fails to establish essential safeguards for judicial selection. One of my concerns is the lack of parameters for candidacy. The judiciary requires expertise, impartiality, and a deep understanding of the law and SCR 1611 does not ensure that these critical qualities are upheld in the selection process."

She also expressed concern that large population centers would dominate in judicial elections, "leaving rural communities with little to no voice in the process."

Jason Alatidd is a Statehouse reporter for The Topeka Capital-Journal. He can be reached by email at [email protected]. Follow him on X @Jason_Alatidd.

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