Kansas Supreme Court

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Assessment of Kansas Attorney General Kris Kobach's testimony regarding "Proposing a constitutional amendment to provide for direct election of supreme court justices and abolish the supreme court nominating commission" (SCR 1611) .

Among key debaters on both sides of this issue identified by BallotPedia, Attorney General Kobach’s testimony demonstrates considerable skill in combining data and narrative elements of persuasion - Aristotle's logos and ethos. As with all policy arguments, however, these claims warrant careful evaluation based on publicly available evidence.

Statements in the Feb. 2025 testimony:

Recent polling of Kansans by WPAi indicates that 74% prefer electing justices versus 20% who favor the status quo.
- Because the WPAi survey questions have not been publicly disclosed in a manner consistent with professional transparency guidelines , the findings cannot be independently evaluated and should be interpreted with caution. Separately, OpenSecrets.org lists WPA Intelligence as a paid vendor for political campaigns, reflecting its role as a campaign consulting firm.
"...the poor decision making of the court has resulted in the Kansas Supreme Court having the highest reversal rate in the U.S. Supreme Court of any state."
- This assessment is complex and depends on how reversal rates are calculated. Link to a lcoal analysis of publicly available U.S. Supreme Court data.
"Contrary to the claim of interest groups who benefit from the current system, it does not actually produce justices with greater 'merit.' Empirical research indicates that the opposite is the case. Choi, Galati, and Posner measured the productivity, independence, and opinion quality of elected justices versus justices selected through the Missouri model..."
- The research Attorney General Kobach cites by Choi, Galati, and Posner is nuanced and does not establish clear superiority of one judicial selection system across all measures of performance. The abstract states:
  "The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write more opinions. The evidence suggests that the quantity difference may offset the quality difference. Elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to voters, whereas appointed judges are more focused on long-term precedent."
- This remains an area of debate. Google Scholar lists subsequent articles citing this study including topics such as mandatory retirement and term limits.

Additional issues not addressed in the testimony:

When should complex state or national decisions rely on experts rather than direct election, as debated in the Federalist Paper No. 10 in 1787?
For example, the public does not choose which admirals design Navy warships; the Navy's system of promotions has identified and created its experts.
Can we better track conflicts of interests of state officials, whether elected or appointed?
Should Kansas evaluate joining 24 other states in Transparency USA (Texas's example).