2016 could be the year that Kansas’ tradition of judicial independence dies, a victim of excessive political ideology and civic indifference.
Without a concerted effort by all people who treasure individual liberty, the fatal wound will be delivered by popular vote on Nov. 8. As we shall see, there’s a frightening irony in that prospect.
Four veteran justices of the Kansas Supreme Court will be on the general election ballot in retention votes, along with one first-year appointee of Gov. Sam Brownback. If one more than half of the voters say “no” to the separate questions of whether each should be retained for a six-year term, Brownback would be able to appoint five new members to the seven-member court.
In the 58-year history of retention votes for Kansas Supreme Court positions, no member has been removed. But much of Kansas’ electoral environment has changed drastically since 2010, when Brownback was swept into office.
A very early hint about a push to toss out the veteran four came recently when Senate President Susan Wagle, R-Wichita, reminded the Wichita Pachyderm Club during a discussion of school financing that the vote was scheduled. The court is likely to rule on the long-standing school finance dispute this spring. Her implication was clear.
Retaliating by voting out the justices would not only ensure the ascension of five Brownback radicals to the court, it would also initiate years of politically based judicial unrest, because newly appointed justices must stand for retention in the next general election following their appointment: meaning that all five newcomers would be embroiled in expensive retention campaigns again in 2018 – and potentially every two years thereafter, ad infinitum.
The federal and state judicial branches established by the U.S. and Kansas constitutions are the only guarantors of personal liberty in the face of runaway legislative or executive branches. The constitutions ensure that our most basic rights cannot be erased by a majority political vote – that justice cannot be subject to popular whims and transient political passions.
And therein lies the irony: The radical conservatives who will campaign to oust the justices also proclaim themselves the guardians of personal liberties. Both ideas cannot be true.
Traditional conservatives should be ardent supporters of judicial independence, not assassins of it. But today’s slash-and-burn Kansas conservatives value slogans such as “unelected, activist judges” and “judicial overreach” over true personal liberties. Their legislators seem more interested in preserving their prerogatives than protecting the republic, and their executive branch seems more interested in imposing a narrow ideology than supporting individual rights.
Centrist Kansans, whether Democrat or Republican, silently on the sidelines for too long, have allowed a takeover by the radical right that has trashed the state’s once-sound finances, seeks to destroy public education and makes life harder for the least fortunate Kansans.
Traditionally, 100,000 to 200,000 fewer people vote in retention elections than in the other contests higher on the ballot. That must change, because allowing the judiciary to become, by default, the next captive of the radical right would take us around a corner and into a dark alley that has no exit for anyone.
Davis Merritt, a Wichita journalist and author, can be reached at firstname.lastname@example.org.