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Picking Judges

Collin Levy has this column in the WSJ (emphasis added):

Problems with the so-called Missouri Plan for judicial selection have become increasingly evident in the states that use it, prompting several to consider revising or abandoning it altogether. The next wave of changes may be coming in Kansas, where lawmakers are considering reforms to the way the state picks its judges.

Under Kansas's current version of the plan, to fill any vacancies on the Kansas Court of Appeals and the Kansas Supreme Court, the Governor must choose among a slate of candidates selected by a judicial nominating commission. The nine-member commission is made up of five members of the state bar association and four non-lawyers chosen by the governor, making it the only state which gives its bar association the power to choose a majority of the commission.

Nominating commissions have routinely pushed state courts to the left, and Kansas has been no exception. In a hearing in the state legislature this week, two of the commission members criticized the process. Commission member Felita Kahrs said that during her tenure, conservative judicial candidates were met with "disdain" by the commission and that discussions of them became "extremely heated and sometimes even hostile."

Every state with a nominating commission should get rid of it.  Unless a state has contested elections (which I do not favor), the executive appointment power is really the only effective way to restrain the courts' natural tendencies to veer in the direction of judicial activism.  Nominating commissions seem to always end up in the control of people who favor judicial activism, usually of the left-leaning variety.

Along with action through the democratic process, Gov. Brownback also wants the U.S. Supreme Court to hold that his state's judicial selection process is unconstitutional under the "one-man-one-vote" cases.  I am not in favor of that.  The federal constitution leaves these kinds of structural decisions to the states and their people.  The nominating commission should leave through the same door it entered.

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