When should a judge be thrown out of office?
This year, Kansans will join voters in 15 states when they engage in a special type of ballot known as a retention election. Voters must choose "yes" or "no" on whether to grant another term to Kansas Supreme Court justices, Court of Appeals judges and, in some counties, local trial judges.
Citizens can, of course, vote however they choose, for any reason, in an election. But courts play a special role in our democracy. For this reason, it's important to consider the potential consequences of voting out judges based on a single ruling or issue.
We depend on courts that are impartial, even when they handle controversial cases or face political attacks. We don't want courts consulting with pollsters before issuing rulings. We want them to rule based on the Constitution and the rule of law.
Courts protect everyone's rights under the Constitution, even when at a moment in history, the rights belong to a minority with little power elsewhere.
Some Americans will point to Brown v. the Topeka Board of Education — a significant step in ending racial segregation in our schools — as one historic victory of law over injustice. The U.S. Supreme Court also has protected the rights of gun owners (in District of Columbia v. Heller and later, McDonald v. Chicago), the rights of property owners (in Lucas v. South Carolina Coastal Council) and the rights of parents to choose which school to send their children to (in Zelman v. Simmons-Harris).
The greatest danger of ousting justices over a single issue is that it could force courts to ignore important constitutional rights in the face of fluctuating political pressures.
Retention elections are intended to be an option for voters to remove a jurist in the rare instance in which one is unfit for office. For instance, removal may be warranted if a justice has defied the rule of law by taking bribes or committing other serious crimes. If a justice exhibits general incompetence or lacks the temperament or character to hear and decide cases fairly and impartially, removal may be reasonable. Finally, if a judge fails to reach timely decisions, or displays an unusually high reversal rate, removal may be appropriate.
Voters should have confidence that judges are fair and impartial, that they have appropriate character, capabilities and credentials, and that they will uphold the law. We expect judges to be smart, hardworking and invested in their communities.
To make sure your judges and justices have these qualities, you should consult multiple sources. In Kansas, you might start with biographical information distributed by the Kansas courts to learn about your judge's training and experience, as well as editorials in your local newspaper. You might also look at judicial performance evaluations, which allow attorneys, court staff and parties in lawsuits to rate judges based on criteria such as legal knowledge, integrity, judicial temperament, communication skills, administrative performance and service to the public. You can find judicial performance evaluations on the Kansas Commission on Judicial Performance's website. Finally, talk to your neighbors — they may have met the judges or appeared before them in court.
Considering a judge's entire record, using multiple sources of information, is the best long-term insurance to protect any state's system of justice. Beliefs and attitudes change with the decades, but the need for an impartial court system does not. If we undermine our courts through one-issue, litmus-test voting, the rights that get disregarded may someday turn out to be our own.