In 2012, Gov. Sam Brownback badgered Tim Owens, chair of the Senate Judiciary Committee, with a clear message: “let us change the way we select judges so we can get judges who will vote the way we want them to.”
In plain English the governor and allied Republican state legislators aim to pack Kansas courts with partisan judges. To date they have been largely thwarted, but Kansans should remain wary. Another round of assaults on an independent judicial branch can be expected in the remaining days of the legislative session as well as in campaigns against individual judges this coming November.
Public attention has been consumed for now with the disastrous condition of state finance—unbalanced budgets, unfair taxation, and excessive debt, plus unconstitutional school finance, but the rendering of impartial justice by Kansas courts deserves equal concern and protection.
Ruling state lawmakers have unleashed a rising crescendo of political threats at the courts over the past five years. Led by the governor and top legislative leaders they are constantly subjecting judges and court rulings to verbal abuse.
They have threatened to shut down the courts with budget cuts.
They have tried to abolish the constitutional procedures for selecting judges on the basis of merit.
They have tried to undo administration of the courts with threats of eliminating court funding.
And last week they advanced legislation of questionable constitutionality that subjects state judges to impeachment for rulings that “usurp legislative or executive authority,” in other words, rulings that legislators do not like.
What is at stake here? These ideologues gained control of the governorship and the Kansas House in 2010, took command of the Kansas Senate in 2012, and now want to commandeer Kansas courts.
Thus far, state legislators who believe in constitutional government have helped state courts withstand this political onslaught. And the courts have proceeded with diligence in interpreting the Kansas Constitution on behalf of all Kansans and providing a check on executive and legislative actions that violate the constitution. These checks and balances represent the hallmark of democracy in the U.S., and an impartial judicial branch stands as a bedrock for our form of government.
But, this legislative session is not over. Majority lawmakers may try again to put forward constitutional amendments that eliminate or politicize procedures for selecting judges on the basis of merit or take actions that threaten court funding or impartial justice in various ways.
If court intimidation through legislative action fails, which now seems likely, Kansans should next expect these lawmakers and their allied groups to campaign against judges who stand for retention in November. Five of the seven Supreme Court justices and six of the fourteen Court of Appeals judges will appear on the ballot for voters to determine whether or not to retain those judges on the courts. Kansans for Life has already targeted a number of judges for non-retention. Groups opposing court rulings on school finance may weigh in as well.
Sorting through these retention elections will require extra vigilance on the part of voters. Ballot fatigue may occur in that judicial retention appears at the very bottom of a long ballot. Groups will be campaigning for and against individual judges, and confusion over largely unknown judges will easily arise. Moreover, state campaign laws do not apply to these statewide retention elections, so voters will not know who is advocating for or against individual judges or financing various campaigns.
In the face of a noisy presidential contest plus critical races involving all 165 state legislative seats, Kansas voters should remain aware that impartial justice and judicial independence are at risk and stand ready to oppose these attempts to pack state courts.
H. Edward Flentje is professor emeritus at Wichita State University.