Opinion: Kansas’ method of picking Supreme Court justices could be improved. But will an amendment do that?

A constitutional amendment on the ballot this summer would change the selection method for Kansas Supreme Court justices. (Submitted)

By Russell Arben Fox

Special to the Kansas Reflector

Less than seven months from now, on Aug. 4, Kansas voters will see on their primary ballots an amendment to the state constitution they can vote “yes” or “no” on. It reads in part:

“The citizens of Kansas who are qualified electors shall elect the justices of the supreme court. The rules applicable for such elections and the designation of position numbers shall be provided by law.”

This proposed amendment has been on my mind for a while, and not just because it’s a vote on an important potential change in our state. I’ve thought about it a good deal because while it is obviously grounded in the particularities of Kansas politics, it’s also reflective of a deeper argument about the power and role of the judiciary in constitutional democracy. My thoughts about that power and role have been pretty consistent over the decades: I think the judiciary has too much of both.

This isn’t to deny that my desire for, and opinions about, small “d” democracy haven’t evolved a lot over the years. They definitely have.

The undemocratic nature of the place the judiciary historically occupied in America’s governing systems — something Alexis de Tocqueville perceived nearly 200 years ago, and actually considered a major plus to our system — was, a decade and a half ago, a major preoccupation and annoyance of mine.

Today, it is much less so. Party this is because of the way the Trump administration has disregarded and attacked many of the constitutional pillars of our liberal democracy, constitutional pillars that have been of immense value to a country that, despite its many statist and oligarchic flaws, is still worth believing in. Hence my willingness to criticize America’s judicial compromises in the name of some hypothetical future participatory democracy has greatly declined.

It is also simply because I’ve come to recognize that the politics which shape the actions of state and national courts are far downstream from the local and municipal politics which I ought to be most concerned about.

Still, I remain pretty radical when it comes to the place of the courts in our constitutional system. I see the judiciary — at least at the appellate level and above — as an unavoidably political body that lacks the direct democratic accountability such bodies ought to be subject to, and wielding a power of judicial review that lacks the democratic legitimacy upon which such functionally legislative actions ought to be premised.

All that just means that I’d like to see the judiciary, its role and power, democratized. Term limits rather than lifetime appointments? Jurisdictional limits upon the scope of judicial review? Or maybe … outright judicial elections? Frankly, I’m open to them all. At least on the level of theory, I’m not opposed to this amendment.

But the context of any constitutional amendment has to be considered, and that’s what I want to do here.

Who supports this amendment? The Republican party does, and particularly the Republican caucus in the Kansas Legislature, as they were the ones who placed the amendment on the ballot in the first place. But the amendment is also supported by local conservative organizations such as Americans for Prosperity and the Kansas Policy Institute.

Their aim, in the words of Senate President Ty Masterson, is to “shine the light of democracy” on Kansas’ merit-based system of selecting nominees to the state Supreme Court justices, a process that is currently “veiled by a commission” (specifically, Kansas’s Supreme Court Nominating Commission, which is mostly made up of other lawyers and who review and recommend to the governor potential candidates for the state’s highest court).

That’s only part of the story, though. Most of the language that came out of testimony regarding the proposed amendment made it clear that the primary motivations of Republican leaders was that the Kansas Supreme Court hasn’t ruled in ways their conservative donors and the conservative activists who make up their base liked when it came to education funding and, most crucially, abortion rights.

The substantive aim of most of those pushing for this amendment is thus almost certainly not about the light of democracy. As Masterson himself strongly implied, they want to change a judicial selection arrangement that, when state Supreme Court “rulings run afoul of the public,” leaves conservative voters with “no recourse to fight.”

For opponents of this change, this means Republicans want to invite national money to fund conservative candidates for the state Supreme Court, and those worries aren’t wrong. Still, that doesn’t mean the democratic concerns woven into this proposed amendment are meaningless either.

One of the most common complaints thrown at our state and local governments is that they lack transparency and choice. The absence of such (or the perception of the absence of such) tends to drive Kansans mad, and properly so. But when it comes to extending that idea to the judiciary, the complaint can cause confusion.

Most Kansans, at least on the basis of my teaching college-age ones for nearly 20 years, tend to look at the justices on the U.S. Supreme Court — who are, like every judge on the federal level, appointed for life rather than elected — to understand how a judiciary is supposed to work. Their unelected status seems a perfectly natural fit with a supposedly apolitical branch of constitutional umpires.

As a result, sometimes first-time voting students ask me worriedly why retention votes for state judges show up on their ballots. When I tell them that Thomas Jefferson, responding to the unavoidably political nature of some Supreme Court decisions, was sympathetic to the idea that the House of Representatives should elect the justices itself rather than the president appointing them, they grow even more perplexed. (Admittedly, this confusion has become less common as politically motivated arguments advanced by many on the Supreme Court have contributed to its reputation crashing, but the lessons of Schoolhouse Rock die hard.)

In truth, once one embraces the idea of a supposedly independent judiciary to interpret the law, every system for determining who will serve as those judges is going to be a complicated compromise. To dismiss any suggested change in how judges are chosen for the sake of preserving “judicial independence” is every bit the simplification as are arguments from Kansas Republican leaders who insist that they just want to bring change in the name of democracy — as opposed to their likely aim of electing judges who would more reliably interpret the state constitution in conservative ways.

Kansas’ system for choosing judges is an interesting combination of merit (nomination by a judicial commission, appointment by governor) and voting (elections to stay in office at the end of the justice’s term). It’s an approach shared, in one form or another, by 17 other states.

But it’s not as though straightforward elections are employed by all the rest.

Only 21 states allow voters to choose their state Supreme Court justices directly. Other states use other methods, including variations on gubernatorial and legislative appointments. Ultimately, the methods of choosing justices, on any court level, vary greatly from state to state— and there is no clear evidence that one method is always better in terms of judicial trust, fairness, and accountability than any other.

Former Kansas Chief Justice Lawton Nuss has criticized the amendment, calling the election of state Supreme Court justices a “really bad idea.” He is joined by numerous state organizations — such as the ACLU, the Kansas Bar Association, and other mostly liberal groups — and I’ve no doubt that they’re sincere (though again, those organizations are probably also motivated in part by a desire to maintain a selection arrangement that has occasionally delivered surprisingly Democrat-friendly decisions).

Either way, I’m unconvinced by the arguments Nuss and others have brought forward (such as making prominent use of use of a single op-ed published more than 10 years ago by a retired Texas Supreme Court judge attacking the judicial election system employed by the state he long served), especially when there large numbers of justices from multiple other states who seem to have done their job perfectly well in more democratically accountable, electoral contexts.

All that said, I would agree with Nuss on one point, and it is perhaps the decisive one for me.

Texas is one of the few states — there are only six others — where judicial elections for the state’s highest court are conducted on a partisan basis. While partisanship is inevitable whenever voters are allowed to freely express their choices, its consequences can be—and in the case of the judicial branch, ought to be—controlled. Imposing nonpartisan electoral rules can help here, or by conducting judicial elections in separate districts (about half of Kansas’s local judicial elections work that way, as do elections to the Illinois and the Kentucky state Supreme Courts).

Would there be complications with implementing any of these qualifying arrangements when it comes to judicial elections in Kansas? Obviously there would be. But the judiciary is important enough to be worth some complicated struggles.

By contrast, the language of the proposed amendment provides no complicated specifics as to what the rules of the judicial elections that “shall be provided by law” would actually be. Without such language, we should probably assume that, if the proposed amendment passes, the elections that emerge from our Republican-dominated legislature will be ones that its supporters think they can win easily: statewide, majority-driven, partisan elections, with conservative influence and money flooding the state.

That alone, despite my theoretical sympathies for almost any proposal to bring greater democratic input and accountability into the process of judicial selection, will probably determine how I’ll vote this summer.

Russell Arben Fox teaches politics at Friends University in Wichita. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

This article was republished with permission from the Kansas Reflector. The Kansas Reflector is a non-profit online news organization serving Kansas. For more information on the organization, go to its website at www.kansasreflector.com.