The question on the ballot will be whether you, as a voter, want to individually retain each of the five Justices up for retention. Retention is part of the time-tested judicial selection process that is currently under attack in Kansas. Having an option, in extraordinary cases, where removal is possible obviously makes sense. We do have mandatory retirement, so judicial appointments are not for life. What is different in this particular election is the organized effort to remove all but one, in appearance, based almost exclusively on one case handled by the court. But here is the real issue. What the opponents of retention really want, and why so much money will be thrown at this from special interests, is for Governor Brownback to have the opportunity to appoint five of the seven members of the Supreme Court, packing the court with far-right conservative judges. What does that mean for us? It means we will have an extreme approach, totally foreign to what we have experienced in Kansas for decades. There will no longer be push-back when a Legislature and a Governor refuse to properly fund public education. There are good reasons that our Kansas “Founding Fathers” put public education as a priority into our Kansas Constitution, but a far-right court has the power to neuter that charge.
Here is the broader case for retention. The judicial system we have in Kansas has worked in a very satisfactory way for decades, through Republican and Democratic administrations alike. Why is this the case? First of all, we have an excellent system of screening and providing Governor’s with a quality list of three candidates from which to select. This is true for not just the Supreme Court, but also for the Court of Appeals and appointed District Judges. Screening commissions are made up of appointments from the Kansas Bar Association as well as appointments from the Governor. For me and my former Governor colleagues, it was important to not just appoint high quality men and women to screening commissions but to also, without interference, let them do their job. Merit has dominated the selection process and it is why our system has had such a good reputation. That is, until the Brownback Administration, when the strategy became obvious to stack the court with right wing idealogues holding complete loyalty to the Governor and his agenda.
From a political point of view, if retention fights become the norm, it puts Judges in an untenable situation. How do they defend themselves? Do we want Judges to have to raise money to literally campaign for retention? If we start throwing out Justices over say one controversial case, how can this approach do anything but lower the quality of justice for all? Not only will highly qualified future candidates think longer about leaving a successful law practice, but worse yet, Justices, being human, may start calculating in the issue of retention as they decide cases. All of this runs counter to the purpose of an equal and independent branch of government to “check and balance” the other branches.
Contrast our current and successful judicial selection system with states where, historically, politics dominate and money has a huge influence on who makes it to the bench. You have not only a different system, but one that does not serve the real interest of the public and the state. Consider here in Kansas, Governors have seldom if ever issued a pardon to any convicted felon. At the same time, in states like Arkansas, the pardons are in the thousands. There, the Governor is literally the court of last resort in a state where money and politics have basically corrupted the system. This is not the future we want for Kansas, and I was glad to join four former Governors this week to share a message on how we, the people, can fight back. Vote for retention, and if this message resonates, please pass it along.