Lee Johnson

Commentary by Retired Kansas Supreme Court Justice Lee A. Johnson — I served on the Kansas Supreme Court for more than 12 years. My path to that Court was not typical.

I grew up in Caldwell, a small town near the Oklahoma border where community service was simply part of life; neighbors looked out for one another; and volunteering was how work got done. Later, I practiced law in Caldwell for more than two decades. That embedded in me a uniquely “rural” perspective that followed me to the Court.

On August 4, Kansans will vote on a constitutional amendment that would replace our merit-based selection system with direct elections for Supreme Court justices. If it passes, I fear rural Kansas will lose its place on our highest court. If so, the Court will suffer that absence of geographical diversity.

When I first applied for the appellate court, which was still under the merit-selection system, I was a virtual unknown in the statewide legal community. I had never been involved in party politics or had political connections; I had not been active in the Kansas Bar Association; and my legal practice was primarily local. Indeed, when my name was one of the nominees sent to the Governor, an urban district court judge reportedly voiced what many were probably thinking: “Who the hell is Lee Johnson, and where the hell is Caldwell, Kansas?”

But the merit-selection process was open to me. Notification of the opening on the court was given to every active attorney in the state, which included instructions on how to apply for the position. No fee was required.

So, I completed a detailed application to the Supreme Court Nominating Commission; underwent an extensive investigation by the Commission; and interviewed with the Commission in an open meeting. After I was selected as one of the three nominees in that open meeting, I went through a KBI background check, before having an in-person interview with Republican Governor Bill Graves. I didn’t get that appointment, but after going through the whole process the next year, I was appointed to the Court of Appeals. Six years later, I went through the whole process again (no smoke-filled back-room shenanigans), and Democratic Governor Kathleen Sebelius appointed me to the Supreme Court.

When I interviewed with Governor Graves and Governor Kathleen Sebelius, both focused on my legal education, legal experience, community involvement, work ethic, writing skills, and collegiality. Neither asked how I would vote on a particular issue, and party affiliation never came up. It was apparent to me that both wanted to select the best jurist they could, without regard to political connections or personal friendships.

That is how an unknown country lawyer without political connections reached the Kansas Supreme Court. Under an election system, someone with my background is unlikely to ever reach that position, for multiple reasons.

First, a rural lawyer could not simply leave the office for months to fund-raise and campaign. Who would take care of their clients? Unlike big, urban firms, most small-town practitioners do not have someone to cover their cases for extended periods of time.

Next is the issue of money. More than $100 million was spent on one Wisconsin Supreme Court race last year. I would not know where to start raising even a few million dollars or locating the holders of the purse strings of dark money from out-of-state. While I could pass the tests required by the current merit-selection system (e.g., legal education and experience, community involvement, integrity, etc.), I could not pass the tests required by the proposed system (e.g., political connections, name recognition, soliciting money, campaigning).

The likely result would be a court drawn increasingly from urban areas, large law firms and political networks. Kansas would lose the perspective of lawyers who understand that an agricultural decision can ripple through an entire local economy, or that when a rural town loses its school or hospital, the question becomes how long that town can survive.

Moreover, Judges are expected to avoid even the appearance of impropriety. Even if campaign contributions do not affect a decision by the Court, the losing party will likely wonder whether it did. Fundraising and campaigning would bake an appearance of impropriety into the election system. In contrast, under merit selection, justices owe allegiance solely to the rule of law—not donors, political parties, or outside organizations.

Kansas gave a lawyer from Caldwell the opportunity to serve on its highest court. We should preserve a system that leaves that door open for the next qualified rural Kansan.

On August 4, I urge Kansans to vote NO.

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Lee A. Johnson served on the Kansas Court of Appeals from 2001 to 2007 and the Kansas Supreme Court from 2007 to 2019. Before joining the bench, he practiced law in Caldwell, where he also served as city attorney.

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