Six of the state’s seven Supreme Court justices stand for retention on the November 8 ballot. They are not household names, but they are of household consequence.
The judiciary stands apart from the seamy campaigns for legislative seats and the governor’s high office. The courts are a measure of democracy, not its marionette. The courts – notably the Supreme Court – remain a cradle of equity, the last thread of hope in the people’s desire for a fair shake.
Nonetheless, Supreme Court justices must stand for retention by public vote as their six-year terms expire.
On the ballot are Chief Justice Marla Luckert, appointed in 2002 by Gov. Bill Graves; Justice Dan Biles (2009, by Gov. Kathleen Sebelius); Caleb Stegall (2014, Gov. Sam Brownback); Justice Evelyn Wilson (2019, Gov. Laura Kelly); Justice Kenyen Wall (2020, Kelly); and Justice Melissa Standridge (2020, Kelly).
Justice Eric Rosen (Sebelius ’05) is not up for retention.
Seven judges of the Kansas Court of Appeals also stand for retention.
*
Republicans have been angry with the state courts for years. They give a special stink-eye to the Supreme Court, which has repeatedly countered their efforts to starve local schools, to outlaw all abortion in Kansas, to play fast and loose with the state budget, and to subvert our voting laws, among other things.
In 2016 the party created a committee, “Kansans for Justice.” They spent a lot of money campaigning against justices up for retention. They had hoped to defeat incumbents and pack the Court with justices appointed by Gov. Sam Brownback, who yearned for ways to advance his pious social engineering. The plan failed. Voters retained the justices.
Last August, voters statewide rejected, 59 percent to 41percent, a proposed constitutional amendment to sidestep the Supreme Court and allow the state legislature to write new abortion bans. (A proposed amendment in November would allow the Legislature to quash the constitution’s separation of powers and overrule a governor’s executive authority.)
Republican leaders have sponsored resolutions to erase sovereignty for the state’s highest court; they demand that justices declare party affiliation and run for office. Another plan would dissolve the Supreme Court Nominating Commission, a lay-lawyer panel that screens nominees and sends three finalists to the governor, who selects one for appointment to the high court. This merit-based nomination and retention system began in 1958; it is non-political and it has worked well.
Attorney General Derek Schmidt, the Republican candidate for governor, wants the federal model for selecting state Supreme Court justices, with Kansas Senate veto power over a governor’s nominees. The 40-member Senate is Republican-dominant (29-11), and would control the nominations. Kris Kobach, a former secretary of state and candidate for attorney general, wants the same. Failing that, they have said, justices should declare party affiliation and run for office.
These models would consign the state’s highest court to Topeka’s shabby political theater, the high troupe for political hacks – precisely the federal model that Republicans long for.
*
The justices’ retention issue asks whether citizens want even more power for a political party, or a separate and sovereign Court.
The Appellate and Supreme Courts are increasingly asked to unravel divisive issues that the legislature cannot or will not resolve. Justices examine the law for answers. For that, they are criticized by politicians who have neither the intelligence nor the inclination to address those heated topics. Or, when they do, the result is disastrously inept or blatantly unconstitutional.
The courts hold a most crucial assignment, to assure our certain rights. This task must be left to those who know what they’re doing, professionals educated, experienced, literate in matters and issues of law.
Chief Justice Luckert and her six colleagues on the high court are by virtue of their appointment the best at hand. They are devoted to the law, not political theater.
Certain political action committees are at work with harsh, even malicious, advertisements claiming that some justices are foul, unfit. They are not.
Retaining them will keep the high court above the sordid mechanics of political mercenaries and sleazy cause lobbies. The courts are an instrument and arbiter of law, and without our courts there is no law, and with no law we are left to the repugnant whiplash of tribal warring, leaving little room for justice and even less for the citizens who need it.
