Some elected politicians want to rewrite the state’s constitution to change how we select justices for the Kansas Supreme Court. They want to abandon the all-volunteer nonpartisan nominating commission that vets judicial applicants and recommends three to the governor. Under their plan, the governor would pick the justice, followed by Senate confirmation.
They want this change because of a misguided idea that justices are a means to an end. From their perspective, the Supreme Court, through the power of judicial review, can thwart their agendas. They want justices who they believe are likely to support them.
And so they boldly, and wrongly, assert that justices of the Supreme Court act like unelected legislators in black robes. As such, their argument continues, the justices should be chosen by politicians who are “accountable to the people.”
But they ignore that what judges do is fundamentally different from the role of legislators. Legislators pick the issues they will champion. Judges, however, do not initiate the cases that are filed and they do not champion the views of either side of a case.
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Legislators deal with abstract policies. Courts decide concrete cases based exclusively on the facts of the cases and controlling law, which shape and constrain the judicial task. Court decisions are always subject to being distinguished in later cases on different facts. Court decisions can be reviewed, and reversed, for error.
Most important, legislators are expected to abide by their constituents’ wills. But courts are rightly insulated from public opinion.
Our founders believed basic rights and privileges to be so important they removed them from the reach of voters and elected officials, and fixed them as legal principles to be applied by courts. They made courts the guardians of rights and privileges for individuals, minorities and persons without political power.
Then they created the judiciary as an institution not under the thumb of other branches of government. The judiciary’s role in our democracy requires judges and justices to perform their duties and produce results that are at times unpopular, but this is precisely what our founders expected of courts.
Swimming against the tide of our founding, those urging change say that justices should be “accountable to the people.” But which people?
Should justices be accountable to politicians who will not take the trouble to understand the facts and controlling law of cases? Should justices be accountable to the “majority”? If so, what happens to minority rights?
And how do justices square public sentiment with their responsibility to uphold the law and the Constitution? When justices start thinking about what the public wants, then we cease to be a government based on law.
In response to a scandal in 1956 about how the lame-duck governor managed a “triple play” and became the next chief justice of the Kansas Supreme Court, in 1958 Kansas voters overwhelmingly took from the governor the power to choose Kansas Supreme Court justices. The people of Kansas enshrined in the constitution the nonpartisan Supreme Court Nominating Commission.
Kansans do not need, or want, change.
F. James Robinson Jr. is a Wichita attorney.