Jessica M. Karmasek Aug. 1, 2013, 4:00pm

TOPEKA, Kan. (Legal Newsline) -- The president of the American Bar Association says Kansas Gov. Sam Brownback was wrong in his remarks about the state's judicial selection process in respect to the association's own recommendations.

Last month, Brownback released the following statement concerning the selection process for filling the vacancy on the state Court of Appeals:

"I have given serious consideration to the subject of the selection process for the current vacancy on the Kansas Court of Appeals, and in particular releasing the names of individuals applying for the Court of Appeals. It is important that we have the strongest possible pool of qualified applicants to serve our citizens," he said.

"In checking with those who have already expressed interest in applying, there is a strong preference for confidentiality, which we will respect.

"It is clear that disclosing the names of potential nominees would hurt applicant pools for future selections and this is why the American Bar Association recommends this method of selection and why the federal judicial selection process follows this same path."

Brownback's decision to keep applicants' names secret has drawn the ire of many, including former state lawmakers and special interest groups.

But Laurel Bellows, president of the ABA, says Brownback is plain wrong in defending his decision by pointing to the bar association's "alleged" guidelines.

"The governor defended his decision by pointing to an allegedly similar practice by the American Bar Association. The governor observed that 'the ABA recommends this method of selection.' The first statement is misleading, the second erroneous," she wrote in a letter to the editor in the Kansas City Star Monday.

"Although the ABA's Standing Committee on the Federal Judiciary conducts reviews of potential nominees confidentially, that function is not analogous to the governor's," she wrote, adding that the committee provides only a nonpartisan peer evaluation and "plays no role in the selection of candidates or nominees."

Brownback has promised his process -- replacing a merit-based system that was in place since the court was created -- would be open and transparent.

Under the new law, enacted in March, the clerk of the state Supreme Court is required to give prompt notice of a vacancy to the governor, who must then make an appointment within 60 days.

If the governor does not make the appointment within 60 days, the chief justice of the Supreme Court will appoint a qualified person for the position.

The Kansas Senate then must vote to confirm the appointment within 60 days of being received.

If the Senate is not in session and will not be in session within the 60-day time limit, it must confirm the appointment within 20 days of the next session.

If the Senate fails to vote within the time limit, its consent will be deemed given.

If the appointee does not receive a majority vote in the Senate, the governor would appoint another qualified person within 60 days, and the same consent procedure would be followed.

"This is not about controlling judges," Brownback said in March. "Judicial independence is vital and necessary for fair and just rulings from our courts. But judicial independence must rest firmly on the consent of the people. Public confidence is the best and only hedge around the independent judgments of our courts.

"We must give all Kansans an equal voice, whether directly or indirectly through elected representatives, in choosing our judicial leaders."

Prior to the new law, Court of Appeals judges were chosen by merit selection.

Under merit selection, a panel of lawyers and non-lawyers interviews applicants to be judges, checks their references and sends the most qualified finalists to the governor. The governor then selects one of the finalists to fill the vacancy.

The new process -- also known as the "federal process" -- is similar to how justices for the U.S. Supreme Court are appointed.

Bellows said the ABA opposes Brownback's method.

"We believe this approach invites partisan politics instead of merit-based review of a potential judge's qualifications," she wrote.

Brownback has until the end of August to make an appointment to the court.

From Legal Newsline: Reach Jessica Karmasek by email at

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