A failed amendment signals GOP discontent over courts

On Tuesday, Kansas voters shot down a Republican-backed proposal aimed at changing how the state selects its Supreme Court justices. Since 1940, multiple states, including Kansas, have switched from appointing justices via popular elections to nomination committees—but Kansas’ recent attempt marks the first attempt to reverse that process.

Republican state Sen. Mike Thompson, who introduced the proposed constitutional amendment, told me on election day he had not anticipated how much national attention the effort would draw. “Apparently a lot of folks are watching what happens out here,” said Thompson.

The Kansas Elections for Supreme Court Justices Amendment failed in the state primaries by roughly 23 percentage points. Both supporters and opponents of the amendment argued for a Supreme Court that produces constitutionally-based decisions, but their politics and approaches differed. Now Kansas has signaled that it has no desire to change its system to one that could be more influenced by national politics.

Since the 1950s, Kansas has used what is called the Missouri Plan to select state Supreme Court justices. Originally, the state appointed Supreme Court justices through direct elections, but following a 1957 political scandal in which an outgoing governor arranged to get himself appointed to the court, the public opted to switch to a nominating commission. Now, a team of five lawyers, chosen by the Kansas Bar Association, and four governor-selected laymen, present three candidates to the governor, who then picks one for appointment. Once appointed, justices face periodic retention elections.

But some conservatives in Kansas say the nomination process has become too beholden to the legal and political class, and they want more accountability placed in voters’ hands.

“Over time we’ve seen more and more rulings that are not constitutional-based at all, but rather more opinion-based on personal bias of justices,” argued Thompson. “And it goes back to who they pick to nominate for those positions on the Supreme Court and who this commission puts forward for the governor to choose from. So that’s been the problem.”

Robert Hogan, a professor of political science at Louisiana State University, says Republican discontent with judicial appointments in Kansas, where the governor is a Democrat, played a big role in the proposal to amend the Kansas Constitution. Louisiana, where Hogan resides, formerly elected its Supreme Court justices through a nonpartisan, or jungle, primary. But in 2026, the state moved to a semi-closed partisan primary. Hogan said these elections have taken on the characteristics of races for other statewide and district offices in Louisiana.

“Candidates have to raise a lot of money, they have to talk about issues,” said Hogan. “This notion that judges are supposed to sort of be above the fray and not get too dirty with politics because they’re going to have to be the ones judging a lot … that has sort of been put aside.”

Describing the Republicans’ side of the argument, Charles Zug, assistant professor of political science at the University of Missouri, spoke of the dynamics of having a judge who’s nominated by lawyers and largely insulated from popular political debates.

“You probably know some lawyers,” said Zug. “They’re not a representative part of the community. … They have a distinctive factional class interest. So under [Kansas’] current arrangements, its lawyers are empowered to a degree to have a lot of say over who the judges are.”

The result is that in a state like Kansas, the state Supreme Court, which has significant power to overturn legislation, can obstruct popular political agendas, Zug said.

“The state’s judiciary has not been as in touch with state electoral politics, which have moved increasingly to the right,” added Zug. “This is consternating to the state GOP, and to national GOP people who have an interest in state governments as well as the federal government conforming to Republican Party goals.”

Amii Castle, a professor of law and business at University of Kansas, pointed to Kansas Supreme Court rulings that exposed its divergence from the state’s GOP lawmakers. In its 2019 Gannon v. Kansas ruling, the court found that the Kansas Legislature must increase funding for public schools. In 2024, the court issued two rulings, Hodes v. Kobach and Hodes v. Stanek, that cemented abortion access in the state constitution.

Thompson says it’s not just abortion and school funding. He pointed to the state Supreme Court’s decision not to intervene last month when a lower court blocked a new state law aimed at eliminating the three-day grace period for mail-in-ballots.

“There are other issues as well,” said Thompson. “And to be honest … we don’t care if it’s left or right or whatever. We just want a chance at getting a ruling that we may not like necessarily but we know is based on constitutional grounds. That’s not what we’re getting out of this bunch.”

Thompson called the current process of putting people on the nominating commission opaque and sequestered. Requiring court candidates to campaign for votes would force them to show their merits and allow voters to judge their past rulings for themselves.

But critics worry that in a statewide election campaign, prospective candidates would be influenced by outside money to emphasize party issues over qualifications.

“We would have politicians who are funded by PACs and donations getting elected, and they would be beholden to donors and the PACs that got them elected. That is how elections work. Full stop,” said Castle. She argued that the state’s current nomination process works well: “We’ve had no scandals of justice, they’re just quality people because they’ve been so well vetted. … I’d rather have a lawyer select a judge than Joe Schmoe.”

It’s unclear whether other states might attempt an amendment similar to Kansas’ proposal. But Tuesday’s effort echoes similar movements in recent years, not all successful. In 2015, North Carolina changed its judicial appointment system back to partisan elections after two decades of nonpartisan elections. In 2019, Arkansas, Kentucky, and South Dakota also proposed constitutional amendments aimed at returning judicial elections to a partisan basis, but they were shot down. And most legislation currently focused on judicial elections—including a potential amendment in Montana and one on the November ballot in Georgia—would further establish nonpartisan, rather than partisan, elections.

After Tuesday’s vote, Thompson suggested the amendment failed because people are ill-informed on what he called unconstitutional rulings. “Too many people weren’t aware of how bad it’s become,” he told me via text. He said the Kansas Legislature will consult with legal experts and consider other options to hold the judicial system accountable.

“We may look at altering the nominating Commission in the future but that would mean another Constitutional Amendment,” wrote Thompson. “In the meantime I think the best thing that we can do is continue to educate people about what is happening with these unconstitutional rulings so that the next time one of these Amendment[s] shows up on a ballot people already know what the problem is.”