Kansas voters this year came close to doing something they never have before: booting a state Supreme Court justice off the bench.
Justices Eric Rosen and Lee Johnson ultimately kept their jobs in an unusually high-profile retention election, drawing nearly 53 percent of the vote. Judges often win elections deciding whether they should remain on the bench by 70 percent or more.
Judicial retention elections increasingly are becoming high-stakes political battles across the country.
“There will be more of these,” predicted Overland Park lawyer Greg Musil. “There’s still an agenda out there that perceives that the Supreme Court and the appellate courts of Kansas are way too liberal to be trusted.”
Gov. Sam Brownback put it another way. “There is a lot of concern about how the judiciary operates in this state and the country. People are getting more and more concerned and vocal,” he said in an interview.
And those concerned interests are pouring millions of dollars into retention elections across the nation. Kansas’ campaign finance laws don’t cover retention elections for the Supreme Court, clearing the way for more “dark” money to filter into the state.
Hard-fought judicial retention elections are hardly new. Voters knocked three California Supreme Court justices off the bench in 1986. But their potency is increasing nationally and in Kansas.
“Everything suggests they’re going to become increasingly more contentious where they look more like real elections,” said Vanderbilt University law professor Brian Fitzpatrick, who studies how judges are picked. “For a long time, they didn’t look like elections. They were coronations.”
Iowa, Alaska, Colorado, Florida and Tennessee are among the states where campaigns have been run to remove Supreme Court justices from the bench based on a wide range of issues, from same-sex marriage to overturning a death penalty case.
This year, a national Republican group spent $200,000 unsuccessfully trying to unseat a Democratic circuit court judge in Missouri’s Cole County, where lawsuits are typically brought challenging the constitutionality of state laws and regulations in Missouri.
Four years ago, abortion opponents tried to oust Kansas Supreme Court Justice Carol Beier, who had been highly critical of former state Republican Attorney General Phill Kline’s handling of abortion investigations.
Beier, appointed to the court by Democratic Gov. Kathleen Sebelius, kept her seat with support from 63 percent of voters.
‘Politicians in robes’
This year’s retention election in Kansas was fueled by the state Supreme Court’s decision last summer to set aside the death sentences of Jonathan and Reginald Carr, convicted of a quadruple murder in Wichita.
The justices ruled that the brothers should have been given separate sentencing hearings, and sent the case back to district court.
Angered by the court’s decision, family members and friends of the victims mounted a campaign against Rosen and Johnson, who also were appointed by Sebelius.
The group’s cause was aided by Brownback’s re-election campaign, which produced ads linking his Democratic challenger to the court’s controversial decision overturning the death sentences.
The two justices received 70 percent of the vote when they stood for retention in 2008 but just less than 53 percent this year.
Observers say this will not be the last high-profile retention election in Kansas, especially because state law has an unusual gap that does not require disclosing who bankrolls a retention campaign for the appellate courts.
Utah is believed to be the only other state where campaigns for retaining judges don’t have to disclose the source of their money. The group opposing the two Kansas justices would not make that information available.
In 2016, Beier will be back on the ballot, along with Chief Justice Lawton Nuss, who has openly feuded with lawmakers about court funding.
“You’re going to have more judges looking over their shoulder wondering whether there’s going to be an outside deluge targeting them depending on their rulings,” said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan group that advocates for impartial courts.
Some lawyers say that ultimately could undermine an independent judiciary, forcing judges to worry more about politics than the law.
“This spells trouble for fair and impartial courts,” said Jim Robinson, a Wichita lawyer who leads the Kansas Bar Association’s legislative committee.
“We do not want a basketball referee to reverse his call when the crowd boos,” Robinson said. “And we do not want courts to bend to political criticism and pressure.”
Some worry the dynamic could also put judges in the position of needing to raise money from special interests that might some day have issues before the court.
“There are real concerns about judges becoming politicians in robes,” said Alicia Bannon, counsel at the Brennan Center for Justice.
Conservatives, led by Brownback, have criticized the justices for authoring decisions colored by their political views. They say the Kansas Supreme Court has overstepped its power in a landmark decision directing the Legislature to put hundreds of millions of dollars in additional funding into schools. They say the Legislature, not the court, makes spending decisions.
There have been legislative moves to lower justices’ mandatory retirement age and dilute their power.
Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers.
The justices stand for retention at the first general election after serving one year. They’re then up for retention every six years.
Brownback unsuccessfully tried changing that process for picking Supreme Court justices so he could appoint candidates with Senate consent.
He is expected to renew those efforts next year. Should he fail, he could gain appointments to the court if justices are not retained.
“As long as you have retention elections and you have controversial decisions angering the right side of the Republican Party, the justices are going to be in for very difficult times,” said University of Kansas political scientist Burdett Loomis.
Some scholars attribute the increasing profile of retention elections to the way states like Kansas pick judges.
The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations.
About half the states choose Supreme Court judges using screening committees similar to Kansas’ system.
“These commissions are sending the governor names that are maybe not reflective of the political orientation of the state as a whole,” Fitzpatrick said.
When the courts block initiatives passed by conservative legislatures in deeply red states, the judges start attracting criticism.
“They are acting as a super-legislature,” said Matt Walter, president of the Republican State Leadership Committee, which helped fund campaigns against the retention of the Tennessee judges.
“Instead of testing whether or not something comports with the letter and spirit of the law,” he said, “they are inserting political ideology.”