Experts v. Electors: The Kansas Supreme Court Amendment

By André Swartley

The process by which Kansas chooses its state supreme court justices goes back almost exactly 70 years, to the carefully timed resignation of Chief Justice William Smith on December 31, 1956.

The governor at the time, Republican Fred Hall, was a former lawyer who had served only a single term in office. He clashed with his party over issues like public education and labor unions, both of which he supported. Being neither conservative enough for his own party, nor progressive enough for democratic voters, Hall lost the 1956 election to Democrat George Docking. This meant that a Democrat was now in line to appoint William Smith’s replacement.

Neither Governor Hall nor Justice Smith wanted that to happen. Together with Lt. Governor John McCuish, they orchestrated the notorious “Triple Play” over a period of four days. Here’s how it worked:

• Dec. 31, 1956: William Smith resigns from the court

• Jan. 3, 1957: Fred Hall resigns the governorship, raising McCuish to governor

• McCuish, in his first and only official act as governor, appoints Hall to the vacant seat

The Kansas Historical Society notes that the Triple Play, “while perfectly legal, nevertheless was considered by many to be highly unethical.” So outraged were the people of Kansas that the state legislature proposed and eventually passed by a margin of over 70% a state constitutional amendment requiring a new, merit-based process to nominate state supreme court justices.

Many states use similar merit-based processes, but Kansas is unique in the nation for incorporating an Assisted Appointment system, led by the state Bar association. This system seeks to combat partisan cronyism by creating a Supreme Court Nominating Commission consisting of:

“nine members — one lawyer and one non-lawyer from each of the state’s four congressional districts plus an additional lawyer who serves as the commission’s chair. Lawyer members are elected by their peers (active Kansas attorneys), and non-lawyer members are appointed by the governor.”

Nominees must also “be a licensed attorney in Kansas over the age of 30 and must have been active as a lawyer, judge, or teacher of law at an accredited law school for at least 10 years.”

Simply put, Kansas Supreme Court hopefuls must possess legal experience and expertise, as well as earn the esteem of their peers in the field. They cannot be nominated or appointed solely through partisan politics.

It is this system that Kansas Attorney General, Kris Kobach, along with Senate President Ty Masterson (R-Andover), wishes to replace by allowing Kansans to vote for supreme court judges on the statewide ballot. Said Masterson of the 70-year-old process, “I’ve been considering it my entire career, because we have the least democratic way of selecting [judges].”

However, not all players in the state government agree that the change has popular (i.e. “democratic”) support. State House Speaker Dan Hawkins (R-Wichita) stated that “The last time we had that vote — which has not been that many years ago — we came up significantly short…[Kobach’s] not talking for us.” House Minority Leader Vic Miller (D-Topeka) added, “I think we have highly qualified justices that are a result of the system we have.”

Mr. Kobach complained in September of 2024, without meaningful evidence, that the Kansas Supreme Court has become “the most progressive” court in the nation due to the merit-based selection process, and that the court has made it “very difficult” for him to pass his preferred policies over the years. In addition to disagreements with the court, the Attorney General’s ambitions have butted up against the will of voters. He lost the election for governor in 2018, flamed out in the Republican primary for senate in 2020, and spearheaded the effort in 2023 to overturn Kansas voters’ “resounding” decision to protect abortion rights. By 2024 he was “by far the most unpopular statewide elected official in the Sunflower State” according to a Fox News poll.

His efforts to put supreme court justice appointments in the hands of voters makes sense when you understand that Mr. Kobach would actually like fewer people to have the power to vote. He has spent much of his career attempting to limit voting rights, and was apparently the original inspiration for President Donald J. Trump’s longtime obsession with voter fraud. (Remember that cases of individual voter fraud in the US are exceptionally rare.) His 2011 SAFE Act, which stripped the voting rights of over 30,000 Kansans and was overturned by a federal judge in 2018, seems like a blueprint for the current SAVE America Act that could disenfranchise millions of American voters.

The proposed amendment, then, looks like an effort to politicize the Kansas Supreme Court, taking the selection responsibility away from professionals and experts. Kansans—and history, for that matter—have not looked kindly on the handful of powerful men who in the early days of 1957 conspired to mold the court to their own ends. Yet the new amendment could threaten a much larger-scale corruption of the court than the infamous Triple Play through the influence of moneyed interests and out of control campaign spending.

Whatever shape the Kansas Supreme Court takes going forward, Kansans will get a say in the matter. The amendment will be on state ballots with a simple Yes or No vote on August 4 of this year.