Barbara Pariente: Protect judges from politics

A campaign to remove two Kansas Supreme Court justices in an upcoming retention election has grave implications not just for Kansas but for our nation. That’s because merit retention elections ask voters to decide whether to retain justices based on integrity and qualifications, not politics. And if these elections for a state’s highest court become politicized, our protections under the Constitution – of equal justice for all – are placed at risk.

I know something about this because I faced a politicized election in Florida two years ago. Two other Florida Supreme Court justices and I were targeted for removal in a retention election. Our critics took issue with a few selected decisions. They attempted to make it all about politics, not judicial integrity and qualifications.

Although special interest and outside groups targeted us with attacks plotted by skilled political consultants, we were able to inform voters about the huge stakes, and we were retained with bipartisan support on Election Day.

Now Kansas Supreme Court Justices Eric S. Rosen and Lee Johnson are being targeted for removal in a campaign based on a single decision in a gut-wrenching, heinous and high-profile criminal case. Because of the last-minute nature of this attack, the justices have no chance to even respond. And because justices are not permitted to talk about the merits of their decisions, it becomes incumbent upon voters to be educated about what is at stake.

Johnson and Rosen are under attack for a decision in a death penalty case where the sentences were struck down for a new sentencing proceeding, although the underlying convictions were upheld. While the pain of the victims’ families cannot possibly be overstated, it also appears that politicians may be trying to use this case to advance themselves and their agenda. This callous, cynical use of a true tragedy for partisan gain is an assault on a pillar of our democracy.

The Constitution guarantees every American due process and a fair trial, even when upholding these rights is unpopular. I fear that these protections may ultimately be threatened when judges who stand for election come under campaign pressure.

We judges cannot render decisions based on popularity polls, because our job is to protect everyone’s rights, including – especially – those who may be reviled or unpopular with the public. While the executive and legislative branches of government answer to the will of the people, the judicial branch must make decisions based on the law and the facts and protect all rights guaranteed in state and federal constitutions. If public opinion at the time had driven Brown v. Board of Education, the U.S. Supreme Court would not have required school desegregation.

Moreover, the retention election process never was designed as a tool for registering disagreement over a single court ruling. It is part of a merit-based selection and retention system in place in both Florida and Kansas, designed to minimize the effect of politics on selecting judges; the judges run without rivals for a “yes” (instead of “no”) vote.

As retired U.S. Supreme Court Justice Sandra Day O’Connor has said eloquently, “The founders realized that there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom.”

It’s not for me to urge a particular vote. Instead, I urge Kansans to learn all they can about the judges, the criticisms that have been leveled, and the critics’ motivations. I urge Kansans to read the reports of their state’s impartial judicial evaluation committee and then to decide. On the line with judicial elections are not only lives, but also every Kansan’s right to seek justice one day from an impartial judge who refuses to be bought or bullied. In America’s courtrooms, there is no place for politics.

This story was originally published October 29, 2014 at 7:01 PM with the headline "Barbara Pariente: Protect judges from politics."