SerpApi.Org
The leader of the largest prosecutor’s office in Kansas issued a scathing critique of a statewide amendment that would change how the Sunflower State selects its Supreme Court, warning the change would politicize the state’s justice system with potentially dire consequences.
In a rare political statement, Sedgwick County District Attorney Marc Bennett laid out reasons for his opposition in a lengthy social media post Tuesday night. He is the highest-profile Republican officeholder to publicly oppose the GOP-backed amendment. He said he was making the statement as an individual, not as an official statement from the district attorney’s office.
Since 1958, Kansas Supreme Court justices have been selected by the governor from a pool of potential candidates put forth by a nine-person nominating commission that includes five lawyers elected by fellow lawyers and four non-lawyers chosen by the governor. Justices stand for a retention vote every six years.
Republicans in the Legislature want to allow election by popular vote, a move Attorney General Kris Kobach suggested in 2022 was part of a plan to remove abortion rights from the Kansas Constitution after voters rejected that very question.
Bennett suggested the amendment would reshape how the state’s high court decides important cases by injecting big money interests and popular opinion into considerations of what the law says.
“Do you think politically elected justices (on the U.S. Supreme Court) would have desegregated schools in 1954 in Brown v. BOE?” Bennett wrote. “Had we elected justices back then, can you imagine the campaigning that would have then followed in 1956 with promises to undo that decision?”
Partisan political considerations
Bennett, who has held elected office since 2012, doesn’t often comment on politics. He has worked on campaigns for several Republican candidates, including Tony Mattivi’s unsuccessful bid for attorney general against Kobach in 2022. He’s one of the few prosecutors in Kansas who has argued cases before the state Supreme Court and appeared before the U.S. Supreme Court (in the high-profile death penalty case involving the Carr Brothers).
“I have been hesitant to say anything publicly because I have tried over the last 14 years as an elected District Attorney to keep my personal political opinions to myself,” he wrote. “I’ve said dozens of times in public settings, ‘if you can tell whether I’m a Democrat or Republican by the way I run the office, then I’m not doing my job.’ I believe that to be true and I am loath to give ammunition to anyone who would politicize the office.
“But the stakes are very high in this matter and I don’t want to regret having remained silent,” Bennett said in his statement. “So, the simple answer is that I do not support this amendment.”
What follows is a 1,600-word dissection of popular arguments for and against the amendment.
“First, several proponents have argued that Kansas is the only state that uses a group of lawyers to select Supreme Court justices,” Bennett wrote, along with a link to a Brennan Center for Justice report on judicial nominating commissions. “That is not true. 34 states and the District of Columbia use independent commissions made up of lawyers or - like Kansas - a combination of lawyers and non-lawyers.”
Bennett described Kansas’ selection method as “hardly unique” and rejected proponents’ argument that the amendment is “simply about the citizens’ right to vote.”
“In 1958 after a political scandal, our grandparents and great grandparents voted by super-majorities in the legislature and an overwhelming popular vote to go to our current merit-based system.
“They were sick of a politicized Supreme Court.”
“Also, if voting for Supreme Court justices is an objective good, why doesn’t every district in Kansas elect local district court justices?” Bennett said. “They don’t. In most, a committee recommends names to the Governor. Why don’t we vote for United States Supreme Court Justices? Or federal judges? I didn’t hear any complaints about the recent appointments of Tony Mattivi or Tony Powell to the federal bench without having been popularly elected.”
Bennett also had harsh criticism of partisan politics in general, taking on arguments that the existing system for selecting judges is controlled by “elites” through “backroom deals.”
“Pardon the sarcasm but, as opposed to what?!?” Bennett wrote. “The pristine transparency of partisan politics?!? Last year, $100 million was spent in Wisconsin for two state Supreme Court seats that each pay less than $200k per year. What on earth would cause that kind of money to be spent on two seats unless those investing their money were convinced they would receive a favorable return on investment??”
Bennett also agreed with many of the points raised by opponents of the amendment, warning that the change would not be likely to result in the most qualified justices serving on the high court.
“The primary argument of those opposed to the amendment is that this vote would infuse politics into justice,” Bennett wrote. “This is undeniably true. If we choose to vote for Supreme Court justices, they will by definition become politicians.”
Bennett said it’s clear that overturning the court’s 2019 Hodes decision - which recognized a right to abortion in the state constitution - “has been a motivating factor for many” who are pushing the amendment.
He also had choice words for the Sedgwick County District Court, where the majority of his cases are heard and where judges are already elected by voters.
“Every single judge in the 18th judicial district is now a Republican - even the liberal democrats,” he wrote. “They have to be to get elected.”
“So what do voters know about them other than they have an R next to their name?” Bennett wrote.
The only qualification to run for judge in Sedgwick County is to be a lawyer with five years of experience.
“What qualifications will there be - if any - to run for Supreme Court?” Bennett asked.
“There have been plenty of times in my 31 years as a lawyer that I have disagreed with the Kansas Supreme Court,” Bennett wrote. “On more than a few occasions, I have been profoundly disappointed by a decision. But I never doubted the sincerity of their effort, their commitment to what they believed the law required or their ethics. Above all, I never had reason to believe a decision was somehow the product of a debt owed to a political donor.”
Bennett ended his statement by suggesting alternatives for improving the Kansas justice system.
“If we want to improve our system, there may be ways to do so worth exploring,” he wrote. “Legislation that sets out specific qualifications, a review of the commission makeup, more public hearings or reports explaining why the commission chose certain names. All would be worthy topics for a robust discussion.
“This amendment, however, is not the way to improve our system of justice.”
Kobach responds
Kobach, in a written response to Bennett’s statement shared with The Eagle and The Star, disputed Bennett’s claims.
“Mr. Bennett and I agree on a great many things, but we disagree on this one,” Kobach wrote. “He makes two mistakes. First of all, the number of states that have the Missouri Plan like Kansas where commissions nominate Supreme Court Justices is 14. The most common system used by states is direct elections of Supreme Court Justices in competitive elections. Twenty-two states do this.”
The disparate statistics on how many states use a similar method to Kansas - 14, according to Kobach and 34 in Bennett’s telling - demonstrate the complexity of judicial selection systems around the country.
A Star analysis found that Kansas is one of 21 states that uses some form of nominating commission and appointment process for filling high court vacancies. No other state’s nominating commission is made up of a majority of lawyers by design, but many states do reserve seats on the commission for attorneys to actively participate in screening candidates and making recommendations.
Kobach said he also disagrees that moneyed interests would have an outsize role in Supreme Court races, saying Bennett’s use of Wisconsin’s 2025 supreme court election would not apply in November of even election years.
“It is ridiculous to imagine that millions of dollars would flow to Kansas when a president is on the ballot and all 50 states have important races on the ballot,” Kobach said. “It’s time to return to the practice Kansas had for its first 100 years, which was electing justices. Our Supreme Court from that era was far superior to the hyper partisan Supreme Court we have today.”
In an interview earlier this week before Bennett’s statement, Sen. Kenny Titus, a Wamego Republican who works as an attorney, said the underlying assumption in Kansas’ current system is that people “aren’t smart enough to make tough choices.”
“What we’ve created over time is a highly political process that is closed off to the public,” Titus said. “My main goal in moving to the election of Supreme Court justices is we take all of the background politics, all of the background politics, all of the gatekeeping that happens outside the public view. And by moving to elections, everything gets disclosed. People get to know the judges and can make the decision themselves.”
If the ballot measure wins voter approval, it will be up to the GOP-controlled Legislature to hammer out key details in 2027 ahead of the first round of high court elections in 2028.
Lawmakers would decide whether to make elections partisan or nominally nonpartisan, and whether to elect all justices statewide or to split up the state into geographic districts, which would likely be drawn by lawmakers.
Two GOP leaders who shepherded the amendment proposal through the Legislature - Senate President and governor hopeful Ty Masterson and House Speaker Dan Hawkins, who is running for insurance commissioner - did not respond to requests for comment on Wednesday.
In response to questions about Bennett’s post, the conservative activist group Americans for Prosperity issued a statement saying, “Opponents of this amendment like to omit that no other states that use so-called ‘merit-based’ systems have nominating commissions where the Bar Association holds a majority of the seats.”
“Anyone who says they can predict exactly how an elected justice will vote is either fooling themselves or fearmongering,” AFP Regional Director Elizabeth Patton said. “Anything would more transparent than the current smoke-filled room of lawyers shaping the court.”
