Outside of courtroom participants, there aren’t many individuals who could hazard an educated guess regarding a judge’s performance on the bench.
Even those in front of a judge likely will have differing opinions — depending on whether they won or lost — on questions such as whether justice is served, whether people are treated fairly and, most importantly, whether appropriate laws are applied and upheld. Attorneys, by virtue of their education, tend to have a more objective view than defendants and plaintiffs.
Lower-level judges who run in contested races basically campaign on their popularity or the vaguest of philosophies, as they are prohibited from taking positions on issues that could present themselves somewhere down the road.
In short, the vast majority of citizens across the nation simply have no clue whether a sitting judge is good or if a candidate for judge could be. Which is why systems that include bar association-guided merit selection, gubernatorial appointment and legislative confirmation are popular for statewide positions. Federal judges follow the same process, although they don’t face retention elections as their appointments are for life.
In Kansas under Gov. Sam Brownback, attempts have been made to shift the selection process from attorneys to the executive branch. It was successful for the appellate court, not so much for the Kansas Supreme Court.
The governor isn’t giving up, however. Listening to Brownback’s choice of words and tone regarding decisions from the high court, it’s clear he’s attempting to influence November’s retention election for four sitting justices. Actually five will be on the ballot but Caleb Stegall is a Brownback appointee.
Brownback will have assistance in what he hopes will be a historic election. That help will come from anonymous donors from around the state and country in the form of “dark money.”
According to a recent Tribune News Service report, “outside interest groups are pumping millions of dollars into state judicial races” in hopes of influencing the outcomes.
The same story said: “A big push this fall by business and socially conservative groups inside and outside of Kansas to fire four justices — and a national response by unions and liberal social groups — could easily be among the most expensive of judicial campaigns.”
Outside groups such as the Republican State Leadership Committee’s Judicial Fairness Initiative were created “to push back on liberal attempts to circumvent the state legislatures where they’ve been voted out of office and instead push policy from the bench,” according to a spokesman for the group.
The U.S. Supreme Court ruling in Citizens United has unleashed a torrent of untraceable cash into the election process — and the majority of it is being supplied for so-called conservative causes.
How the regular conservative justices currently on the Kansas Supreme Court have become targets shows how far right the executive and legislative branches have become in the Brownback era. The judges have upheld the will of the people by adhering to the state Constitution, but since doing so was contrary to the wishes of the governor’s office the justices will face a barrage of negative advertising between now and Nov. 8.
And, because the justices will follow their code of ethics and the law, they will not be able to directly counter the attacks.
It will be up to the people — at least those who will bother to vote — to understand what is taking place. The Kansas Supreme Court is doing its best to preserve the greatness of this state. They are all that stand in the way of a governor and his legislative cronies who are manufacturing one crisis after another in an attempt to grind state government into the ground.
It is a fight the people can win. Nay, it is a fight the people must win. We must stand together — and against the upcoming onslaught of negative advertising influenced by the least popular governor in America.
Editorial by Patrick Lowry