Opinion Columns & Blogs

Have justices become ‘activists’?

Judicial elections are difficult enough for voters to make an informed decision, but this year’s retention elections for Kansas Supreme Court justices have been complicated with misrepresentations.

The most egregious false statement is that Gov. Sam Brownback will make a “power grab” and be free “to stack the court” with his political cronies if the current justices are not retained. The pro-retention forces are trying to use Brownback as the boogeyman.

In filling a vacancy, the Supreme Court Nominating Commission actually has more power under the Kansas Constitution than the governor. The commission, comprising five lawyers and four lay members, selects three candidates to nominate for the vacant position. They can select anyone who applies from several thousand eligible attorneys in the state.

The governor must then select only one of those three who is nominated. For example, if the commission nominates three liberal Democrats, Brownback must appoint one of them to fill the position.

There are legitimate issues that both sides have raised that should be evaluated by the voters. The pro-retention forces have pointed out the importance of judicial independence. A court should not be afraid to make a politically unpopular decision if it is the correct ruling of the law.

To enjoy the protection of judicial independence, judges must exercise judicial restraint. The role of judges, especially appellate judges, gives them the opportunity to shape social or political policies to reflect their own views, but they should refrain from doing so. If they choose not to resist the temptation, they risk losing the presumption of judicial independence granted to them by the citizens.

The anti-retention supporters maintain that some of the justices fail to exercise judicial restraint or, in other words, have become “activist judges.” An area of concern is the perception that they are blocking imposition of the death penalty. The Kansas Supreme Court overturned the first seven death penalty cases. Another concern is whether the court is overstepping its boundaries and invading the legislative function by reviewing the amount of educational appropriations.

The pro-retention forces argue that only a small percentage of cases have been reversed. In fact, most cases decided by the court are not reviewable by the U.S. Supreme Court. In the past 10 years, the U.S. Supreme Court has agreed to review only six cases decided by the Kansas court. Five of those were death penalty cases, and there was an additional case involving a murder conviction. All six were overturned.

Justice Caleb Stegall came onto the court after all of those decisions were rendered. Voters will have to decide whether the other four justices have become “activist” and not entitled to the citizen-granted presumption of judicial independence.

Voters will also have to decide whether going 0-6 with their reviews by the U.S. Supreme Court shows a lack of competency in deciding constitutional questions. In the sports world, when a football team goes 0-6, they usually are looking for a new coach.

Clark Owens of Wichita is a retired District Court judge.

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