Former chief justice says Supreme Court election in Kansas is a 'really bad idea'

Sue Bond isn’t squeamish about partisan politics.

Her late husband, Dick Bond, spent four years as the Republican president of the Kansas Senate after all. But Bond, 89, doesn’t think politics should determine who sits on the bench of the state’s high court.

That’s why she’s speaking out against the Republican plan to switch from a merit-based system to a model where voters directly elect the seven justices of the Kansas Supreme Court — an effort Republicans believe could help bring to heel a court that has protected abortion access.

“I just think that judges should be nonpartisan because the people and the cases that appear before them are from people and problems of all walks of life,” said Bond, a Prairie Village resident who spent eight years as a member of the Supreme Court Nominating Commission after being appointed by Gov. Bill Graves in 1996.

She doesn’t want to see statewide judicial races devolve into partisan, money-fueled brawls like this spring’s Wisconsin contest, which drew more than $100 million in spending, including from super PACs run by billionaires Elon Musk and George Soros.

Under the language of the constitutional amendment that Kansans will be asked to vote on next August, justices would be allowed to make political contributions, take part in political campaigns and hold office in political parties. In theory, a justice could simultaneously lead the state Republican or Democratic party while sitting on the court.

Who picks Supreme Court justices?

Kansas used to directly elect its Supreme Court justices. But after a major scandal in the 1950s that saw a sitting governor lose his re-election bid and pull off a maneuver to get himself appointed to the high court, voters wanted a change.

In 1958, they passed a constitutional amendment enshrining the current system, in which governors fill Supreme Court openings by selecting a candidate put forward by a nine-member nominating commission.

Kansas is one of the 14 states with a merit selection system, first adopted by Missouri in 1940. However, as Republicans are quick to point out, Kansas is the only nominating commission where attorneys make up a majority of members — five of the nine people who interview prospective justices and settle on three finalists.

Governors appoint one nominating commission member from each of the state’s four Congressional districts, and licensed attorneys from within each district vote to choose their representative on the commission.

Lawyers from across the state have the opportunity to select an at-large attorney member who serves as chair of the commission, which routinely evaluates dozens of applications to fill court vacancies.

Bond said she was disgusted by the “scare tactics” GOP leaders employed to make their case for direct election this spring.

“This whole business about it’s run by lawyers — it’s not true,” Bond said.

“The Republicans that are writing (the ballot question) are very clever, and they know the trick, and they know how to find that statement that, ‘Oops, we don’t want a whole bunch of lawyers.’ The same way they tried to do with the abortion issue, to find a trigger point for everyone that we don’t want that,” she said.

In her experience, Bond said, non-attorney members’ opinions are given just as much weight as their counterparts on the commission.

“They listened to me. I worked hard. I investigated the people,” she said. “And when I found information and I presented it at the meeting, people listened to me and respected me.”

Bond recalled an instance when the other members of the commission were leaning towards one particular candidate. After she told them she had tried calling each of the candidates’ references multiple times without hearing back, they went in a different direction.

Justice for all

Sen. Kenny Titus, a Wamego Republican and attorney, said he votes for nominating commission members when given the opportunity. But he doesn’t believe it’s an equitable system.

“It’s currently a political process as it stands now, and I think it’s disingenuous to say otherwise,” Titus said.

He said there’s a “political tilt” to practicing lawyers in Kansas, adding that they “carry that baggage with them” onto a nominating commission that gives them undue influence over the judicial system.

“It’s just like any other election. They send out campaign letters, they talk a little bit about their values and what they believe in, but the real difference is that only a very small number of people get to see that,” Titus said.

Kansas Supreme Court justices stand for retention votes every six years. Titus said the fact that no justice has ever been dumped by the voters demonstrates that it’s not enough of an accountability mechanism.

Rep. Dan Osman, an Overland Park Democrat and attorney, said it demonstrates that voters believe the system works. Direct election would turn off the most qualified candidates, he said.

“Factors of who is the best legal scholar no longer matter (with direct election),” Osman said.

“The best person might not be up for the task of campaigning.”

Former Kansas Supreme Court Chief Justice Lawton Nuss told The Star he more than likely would not have sought the job if it meant running for election.

“The idea of going throughout the state either in person or through my intermediaries, or running ads in the media that basically tell people how I’m going to vote on certain issues is a really bad idea,” Nuss said.

He said justices are supposed to approach each case with an open mind — listen to the arguments, look at the facts, and base a decision on the merits — not what they promised somebody during a campaign.

Elections vs. appointments

Past legislation to move Kansas to a “federal model” where the governor nominates Supreme Court justices and the state Senate confirms has failed to advance, though Republicans successfully moved the state’s appeals court to that process several years ago.

Before that switch, Lawton, then an attorney, applied three times to become an appellate judge. The first two times, he was passed over by the selection committee. The third time, he was a finalist but Gov. Graves didn’t choose him.

He believed he could improve his chances by getting involved in more jury trials and writing more legal briefs. When he submitted his fourth application, this time to fill a Supreme Court vacancy, he made the short list and Graves appointed him.

“It is a competition that’s not based on money but based on merit, and that is ultimately whom I think Kansans want as justices on their Supreme Court,” said Nuss, who retired in 2019.

During his time as chief justice, Nuss presided over the court in a number of major rulings, including one that struck down a state law banning abortions in the second trimester and two landmark school finance cases that brought hundreds of millions of additional dollars to the Kansas educational system.

He said direct judicial elections are ripe for corruption.

“My concern is that people who would not necessarily be qualified but who raise a lot of money tell people in Kansas what they stand for,” Nuss said.

He likened it to Simone Biles raising money and presenting it to the International Olympic Committee to persuade them to name her the greatest female gymnast of all time.

A merit-based system just works better, he said.

“She competes against many, many people and she comes out on top, so you know from that that she is the best,” Nuss said.

“Instead of Simone Biles saying … ‘If anybody competes against me, they can raise money, too, and they can make that argument and say how wonderful they are and how well they will perform in the future.’”