Supreme Court Selections In Kansas This article is an attempt to sort out any confusion surrounding a forth-coming ballot question in the 2026 Primary Election on August 2. Kansans will be asked to consider a proposed amendment regarding how vacancies are filled on our Kansas Supreme Court.
Currently, a 9-member panel (Supreme Court Nominating Commission) selects 3 candidates from a list of those seeking to serve on the high court. The only requirements for a candidate are that they are at least 30 years old; are regularly admitted to the Kansas Bar, and have actively and continuously practiced law (as a practicing attorney; judge of a court of record; or a full-time law professor at an accredited law school) for at least 10 years prior to appointment. This nominating commission is comprised of one lawyer & one non-lawyer from each of the state’s 4 congressional districts. These 4 lawyers are voted onto the commission by their peers, plus one additional lawyer is elected by lawyers statewide to serve as chairperson of the commission, for a total of 5 lawyers. The 4 non-lawyers are appointed by the governor. These nine individuals vet all candidates wishing to be considered for service - then submit 3 final names to the governor who has 60 days to make an appointment. Kansas is the only state in the Union with this type of judicial selection process for justices on a Supreme Court.
Numerous recent TV ads and postal mailers, stating that in Kansas Supreme Court justices are chosen on merit and experience, and that we, the people, can vote to retain or remove them, by ballot, if we feel they are not meeting their constitutional duties, or if they are legislating laws, rather than interpreting them, from the bench (not part of their legal job description). These ads, and the signs that have been popping up all over Kansas, telling us to “Vote No” on Aug. 2.
But ‘vote no’ on what? It turns out a proposed change to the Kansas Constitution will appear on the ballot in August asking us whether or not to return to our state’s original judicial selection process (by popular vote) which was the process used for the first 100 years of statehood in Kansas. In that process, candidates for a vacancy were subject to disclosure rules and campaigned by providing their background information and stating their particular methods of interpreting cases to protect our constitution — a process much like nominees to the Federal Supreme Court go through with congressional affirmation hearings. This process was changed by amendment in 1958 after a disgruntled governor (Fred Hall-R) lost his party’s 1956 primary. He then used his remaining days in office to game the election system by resigning 11 days before his term ended, thereby elevating his Lieutenant Governor, John McCuish, to the governorship. McCuish’s only official act as Governor was to appoint Fred Hall to a vacancy on the Supreme Court, preempting the incoming Democratic governor of this privilege. This controversial powerplay outraged voters on both sides of the aisle. Rather than the legislature addressing the issue of resigning from office for nefarious reasons before a completed term, voters were asked to pass a constitutional amendment creating the current nominating commission.
So why the proposal to change it back to a popular vote by the citizenry? One reason given is that voters are asked to retain justices they know nothing about. Justices aren’t required to have any judicial or even trial experience. How can anyone make an informed decision about someone’s livelihood if we have no knowledge of their judicial temperance? Should it be left up to each individual voter to research a candidate up for retention? In the current system, we don’t know who is up for retention before we see their names on a ballot. We are just told to mark a yes or no box next to a name. Not very empowering for a voter who wishes to make informed decisions.
Most of the “Vote NO” ads and signs are paid for with big bucks by organizations such as Kansas Fair Courts Fund, the ACLU, and others. Curiously though, a great deal of additional money is being spent by Planned Parenthood. Several large and colorful flyers have been circulating in the mail from them, also requesting a NO VOTE. If the current selection process is truly non-partisan as proponents claim, why would Planned Parenthood have such a huge interest in the process? It is an intriguing question to contemplate.
Could they have a vested interest in retaining activist justices who have already re-interpreted the simple wording of Section 1 of the Kansas Bill of Rights to include an inherent right for women to have an abortion, an interpretation that greatly benefited Planned Parenthood. Our U.S. Constitution interprets an ‘inherent right’ as a natural right given by our Creator. To declare abortion as a God-given right is a bit of a stretch. The actual reading of Section 1 of the Kansas Bill of Rights states “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The Kansas Supreme Court determined this so-called ‘inherent right’ in a 2019 case called “Hodes & Nauser, MD’s v. Schmidt,” in a 6-1 decision.
Additional history involving abortions happened in June of 2022, when the US Supreme Court overturned “Roe v. Wade” in “Dobbs v. Jackson,” determining that the US Constitution does not explicitly mention or protect the right to an abortion, thus returning the authority to regulate the procedure back to the state legislatures. In response, the Kansas Legislature proposed another amendment to the State Constitution that would declare that it also does not guarantee abortion as an inherent right, and would declare that the state would not be required to fund abortions, thereby giving the Kansas elected officials the authority to regulate abortion procedures in line with their constituents’ majority desires on the subject. In extremely confusing campaigns, by both proponents and opponents, Kansas voters overwhelmingly rejected the proposal. Then in 2024, the Kansas Supreme Court issued two landmark abortion rulings in Hodes & Nauser, MD’s P.A. v Kobach and Hodes & Nauser, MD’s P.A. v Stanek, both decided on July 5, 2024. These decisions by our Justices strongly reaffirmed the 2019 constitutional right to personal autonomy — including abortion — under Section 1 of the Kansas Bill of Rights, which clearly did not explicitly refer to bodily autonomy or abortion. Our Kansas justices also extended abortion protections by striking down our legislative laws and regulations governing the licensure of abortion facilities in a 5-1 decision.
Whatever decision is made by voters on Aug. 2, a “YES” vote will return Kansas to a system whereby all voters have a say in who wins a seat on our Supreme Court. A “NO” vote continues to allow a very small group of voters, who just happen to be lawyers or politically connected persons, to choose the candidates for us. You decide.
Regardless of how the Aug. vote concludes, later this year in the November 6 general election, we will be asked to retain, or not, two current Supreme Court Justices up for retention (along with judges on all other court levels). Those on the November ballot are Justice Eric Rosen — appointed in 2005 by then governor Kathleen Sebeluis (D)—who is seeking retention for another 6-year term; and Larkin Walsh — appointed in 2025 by Governor Laura Kelly (D) seeking retention to serve her first 6-year term. Both have issued opinions in past cases that you may or may not agree with. Anyone can learn more about these candidates on the internet where you’ll find the holdings of past Supreme Court cases, and can learn how the justice voted. Hopefully this will provide information to aid in casting an informed vote. A great deal is at stake in state judicial selections, as we have seen recently across all court systems in the U.S. (Federal, Appellate, District, and Municipal).