A divided U.S. Court of Appeals on Thursday rejected a challenge to the way Kansas selects its judges.
In a 2-1 ruling, the court in Denver agreed with a federal district court in dismissing a complaint aimed at the state's longstanding merit system used to select members for the Kansas Supreme Court and the Kansas Court of Appeals.
Conservative lawmakers and Republican Gov. Sam Brownback have criticized the practice and sought to change it. That push is expected to continue during the 2013 session of the Kansas Legislature. A similar debate has raged in Missouri in recent years.
In Kansas, a nine-member Supreme Court Nomination Commission reviews applications for court vacancies and submits three nominees to the governor, who then picks the judge. Those judges then stand for retention in general elections after they have served at least a year on the bench.
What Brownback and others object to is the makeup of the nomination commission. Five of the nine members are lawyers who are selected by other attorneys around the state, meaning lawyers control the selection process.
The four other members are non-attorneys and are appointed by the governor. The process, referred to as "merit selection" of judges, was established in the 1950s as a way to limit the influence of politics on how judges are picked.
A group of four Kansas voters objected to the selection procedure and sued, arguing that it violates the one-person, one-vote principle of the Equal Protection Clause because only lawyers get to vote on the five members.
However, in rejecting the voters' claim, Judge Terrence O'Brien ruled: "In the end, this court must defer to Kansas in decisions relating to the structure of its government. Kansas voters adopted merit selection as a middle ground between an appointment process scarred by abuse and an elective process susceptible to politicization."
O'Brien, who was appointed by President George W. Bush, wrote that Kansas intended that the commission favor lawyers to limit the influence of politics on the process "and ensure the quality of its judicial nominees." He said that preserving the quality and independence of the judiciary is a "legitimate government interest" and that having lawyers elect a majority of the nomination commission "is a rational way to accomplish that goal."
O'Brien added that attorneys are better equipped than non-attorneys to evaluate judicial candidates.
In his dissent, Judge Monroe McKay said the process remains subject to manipulation because the commission can control the choice by submitting one acceptable choice "and two individuals it knows the governor will not select."
Robert Dool of Wichita, one of the four plaintiffs, said he hoped the group would appeal to the U.S. Supreme Court, although he said no decision had been made.
"This has to do with a system that is primarily controlled by the Kansas Bar in making those recommendations," Dool said.
Todd Thompson, the lawyer for the nomination commission, referred a request for comment to a spokesman for Attorney General Derek Schmidt, who was unavailable.
