“It is a heady feeling being in the political majority and having all branches of government accountable to your beliefs, but we must not forget that one day the tables may be turned and our only recourse as members of a political minority will be in a court of law…. I want the judge presiding over my case to have allegiance only to justice and the law, not to the political interests that can ensure his or her re-election.” – John L. Warren III, Washington University Jurisprudence Review, 2014.
A citizen’s only guarantor of personal liberties is an independent judiciary protected as much as possible from the inexorable, if sometimes slow, to and fro of the political pendulum.
Complete insulation is difficult when the state’s highest judicial officers are subject to retention elections every six years. However, reasonable protection can be provided if voters understand the overriding importance to them of judicial independence and resist the pressure or temptation to dismiss judges because of specific decisions.
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That is the test of civic maturity Kansans face Nov. 8 when five Supreme Court justices and six appeals court judges (11 out of 21) are up for yes-or-no retention votes.
Replacements for any voted out would be chosen by Gov. Sam Brownback, who makes no secret of his ambition to mold the Kansas judiciary to his ideological specifications. That’s truly corruptive of judicial independence.
Dismissal of any of them would be an unfortunate precedent. In 56 years of the retention process, no one has been voted out. A study of the outcomes nevertheless illustrates the risk described by Warren.
From 1958 through 2012, Supreme Court justices were routinely retained by margins ranging from 3 to 1 to 7 to 1. Brownback was inaugurated in 2011, and the 2012 retention election followed the historic pattern, Justice Nancy Moritz winning by 70.9 to 29.0 percent.
But Brownback began aggressively attacking the court’s independence, seeking to change the constitutional appointment process and to unseat two justices up for retention in 2014. Each squeaked by, 52 percent to 47 percent.
This year, all the guns and money of the Brownback far right are trained on four of the justices. It is worth noting that three of the targeted four have twice been retained by those huge margins and the other retained once, by a comfortable 2 to 1 margin.
So why are they suddenly unacceptable? The answer: They have not changed but the political atmosphere under Brownback obviously has.
Conservatives pleased by that change should not fail to notice that this year’s primary voting indicated a shift toward the middle. Any new justices appointed by Brownback in 2017 would face retention votes in 2018. If the political shift toward the center continued, their short tenures would again subject the court to massive change.
So we’re living a Kansas version of Warren’s cautionary scenario, and that would be good for no one, conservative, moderate or liberal, or for the quality of justice itself. Continual mix-master disruption for transient political reasons would diminish the crucial values of experience, continuity and public trust.
Tossing out judges because of dislike for their decisions is not an answer to an improved justice system; it’s a poison.
Attorney Theodore Olson, certified, life-long conservative lawyer in the Ronald Reagan and George W. Bush administrations and architect of Bush v. Gore, wrote in its corrosive aftermath:
“We expect dignity, wisdom, decency, civility, integrity and restraint from our judges. It is time to exercise those same characteristics in our dealing with – and commentary on – those same judges.”
This year, that means voting “yes” for them and for independence.
Davis Merritt, a Wichita journalist and author, can be reached at firstname.lastname@example.org.