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In more than 60 years, no Kansas Supreme Court justice has been ousted by voters. But that hasn’t stopped campaigns from trying. And while no such campaign has made itself known yet this election cycle, one expert told The Beacon that attack ads might begin to appear around mid-October, and would likely oppose keeping the justices who in 2019 upheld the right to an abortion in Kansas.
Of the six justices who appear on the ballot in November, two sided with the landmark state Supreme Court decision that upheld abortion rights, one signed the appellate court’s opinion in the same case that also upheld abortion rights, two were not yet appointed and one dissented.
Republicans in the Kansas Legislature, critical of that opinion, put an amendment to the Kansas Constitution before voters on Aug. 2 seeking to eliminate a constitutional right to an abortion. Kansans voted in record numbers to reject the amendment.
Now some of those same critics are organizing to urge voters to vote “no” on retaining current justices. If a majority of voters decide against retaining a Supreme Court justice, that seat will become vacant and will be filled by whoever wins the governor’s race in November.
The stakes are high. With the conservative majority in the U.S. Supreme Court poised to confer an increasing amount of authority to the states — much like it did with abortion rights and redistricting — the importance of state courts is likely to expand, creating a growing incentive to politicize an institution that may be poorly understood by voters.
Efforts to remake Kansas courts through justice retention votes have been tried before — but without success.
In 2014, justices were targeted for removal after an unpopular 6-1 decision that overturned the death sentences of Wichita brothers Jonathan and Reginald Carr, who were convicted in a December 2000 quintuple homicide. The removal effort found sympathetic audiences in Sedgwick County and rural western Kansas, where more voters voted against retaining the two Supreme Court justices on the ballot that year, The Wichita Eagle reported. But voters in the northeastern corner of the state gave both justices enough votes to keep their jobs.
In 2016, five justices who appeared on the ballot were targeted for their positions on abortion rights and school funding, The Topeka Capital-Journal reported. All justices were retained.
In response to campaigns to oust justices, advocacy efforts to retain them have emerged. The group Keep Kansas Courts Impartial, led by former Justice Carol Beier, advocates retaining all sitting justices, regardless of who appointed them.
The battle to control the state Supreme Court has spilled into the legislature. From 2013 through 2016, lawmakers introduced at least 20 measures that would have altered the way prospective judges are selected across all levels of the judiciary. This included at least 15 attempts to change the Kansas Constitution. All efforts but one — a 2013 bill that changed the selection process on the state appellate court — were unsuccessful.
Candidates for the state’s most powerful executive branch positions have also voiced their support in changing the way justices are selected. Kris Kobach, Republican candidate for state attorney general, wants state Supreme Court justices to be elected directly by voters in partisan elections and to eliminate the merit-based selection process currently in place. Attorney general and gubernatorial hopeful Republican Derek Schmidt, who is running against incumbent Democratic Gov. Laura Kelly, provided testimony in March in support of adopting a so-called “federal” judicial selection system, in which the governor nominates a justice, who then must be approved by the state Senate. Schmidt’s testimony said he had advocated for changes to the Supreme Court selection process as far back as 2005 when he was a lawmaker. He also said he would vote against retaining some justices this November, but did not specify who.
Some experts, legal practitioners and those who closely watch the judiciary see increasing assaults coming in the form of expensive political campaigns that attempt to dislodge justices from their seats, and efforts to change the judicial selection process to include partisan elections, political appointments or confirmations. These experts believe attempts at politicizing the bench risk the impartiality and independence from outside influence that the judicial branch embraces as defining values.
“A dangerous politicization would come from changing the current Kansas system,” said Karl Brooks, a professor of practice at the University of Kansas’ School of Public Affairs and Administration. Brooks, an attorney by trade and former state lawmaker from Idaho, previously worked as a deputy director for the New Mexico judiciary’s administrative office.
“If you want politicization, the federal system would be the way to go, because it’s become extremely political and partisan,” Brooks said.
How are Kansas Supreme Court justices selected?
Kansas currently uses a merit-based system to choose its state Supreme Court justices. Whenever there is an opening on the bench, the court’s nominating commission has 60 days to assess applicants’ experience, background, ethics and impartiality before presenting a list of three finalists to the governor. The governor appoints a new justice from among those three nominees. The new justice will then face a retention vote in the general election following their appointment, and face retention votes after each six-year term.
Critics of the merit-based system, many of whom support abolishing the nominating commission outright, say it is undemocratic and that voters have no direct say in who is selected to the Kansas Supreme Court.
But Brooks said the system balances public input with the qualifications necessary for the job.
“The current system is a sort of mix and a refinement of public opinion and commitment to judicial independence and a high level of lawyering needed to serve on the Supreme Court,” Brooks said. “So it’s a little bit of a mix of pure qualifications, reputation, legal experience, and there is public opinion that enters into it through how the commission gets composed, and then definitely public opinion with the governor’s role and making a final selection.”
The current merit-based system was adopted by voters in 1958 in response to a coordinated power grab known as the “triple play,” said Lou Mulligan, professor at University of Kansas School of Law. Then-Gov. Fred Hall lost the 1956 Republican primary but, with the help of political allies and no real checks and balances, secured for himself a place on the Kansas Supreme Court.
Hall served on the bench for only 15 months, but his legacy continues to shape the Kansas Supreme Court to this day. The ensuing scandal triggered the creation and eventual adoption of a constitutional amendment that established the merit-based system Kansas continues to use.
Selecting the selectors
Currently, the Kansas Supreme Court Nominating Commission is made up of five lawyers and four nonlawyers. The five lawyers are selected by other lawyers — one to represent each of Kansas’ four congressional districts, and one chairperson from anywhere in the state. The four nonlawyers are selected by the governor, also one from each congressional district.
But some are unhappy with what they perceive to be the commission’s insularity.
“There are many people who criticize the Kansas Supreme Court nomination commission that has majority lawyers as opposed to majority elected officials or majority average citizens,” Mulligan said. “And there’s definitely (internal) politics involved in that, because Kansas is a small bar (association), and people know who’s going up for those positions.”
A report from the Brennan Center for Justice, a nonprofit policy think tank at New York University, refutes the argument that Kansas’ Supreme Court nominating commission is overly restrictive in its membership compared to other states. The report says that 26 states, including Kansas, have nominating commissions that sourced more than half of their membership from attorneys.
Having lawyers on the commission ensures that possible justices are assessed through a lens of professional standards rather than politics, wrote F. James Robinson Jr. of the Kansas Bar Association in written testimony to the legislature.
“Lawyer members understand the work of courts, can critique the applicant’s written materials, and are aware of the specialized knowledge and experience needed to serve as a judge,” Robinson wrote.
Researching Kansas Supreme Court justices
Unlike an incumbent candidate for the state legislature, when a voter hoping to inform their decision might research a candidate’s voting history, hearing testimony, floor speeches or campaign donations, such information about incumbent justices is not readily available.
Supreme Court opinions are available for the public to read free of charge, but are often cumbersome and overly technical for someone without advanced legal training, and would be a prohibitively time-consuming way to understand a justice’s judicial practices. Campaign finance rules that require most candidates to file reports disclosing their campaign donors do not apply to Kansas Supreme Court justices — or to campaigns organized to oust them.
So, without an obvious or straightforward way to assess a justice’s performance, how should a voter research the judges who will appear on their ballot?
Some independent organizations compile information into profiles of judges. Ballotpedia, for example, prepared a nationwide report of the highest court in each state, including Kansas, that analyzes justices’ voting patterns and ideologies. The most recent report is more than two years out of date, however, and does not include two justices who were appointed since the report was published.
Professional organizations also collect information on justices. The Johnson County Bar Association, whose membership is made up of licensed attorneys, surveyed its members on whether current justices should be retained. Of the attorneys who responded, most supported retaining all justices. The association’s judicial evaluation can be found on its website.
In other states, like where Brooks used to work in New Mexico, the judicial branch performs and provides evaluations of judges who appear on the ballot that voters can use as guides, Brooks said. Kansas could offer something similar, he said.
But until that happens, Brooks said one way voters can research the justices on the ballot would be to call a trusted lawyer.
“If you know anybody who is a practicing attorney, or some kind of cop, a prosecutor or a probation officer or somebody who’s around our legal system in Kansas, ask them what they think of a justice,” Brooks said.
Who’s on the November ballot?
Six of seven Kansas Supreme Court justices, all but Eric Rosen, are on the ballot for a retention vote this November. A vote “yes” is a vote to keep them on the bench in their current role; a vote “no” is a vote to remove them from office and create a vacancy, which would be filled by whoever wins the governor’s race in November.
If a coordinated campaign were to emerge encouraging voters to vote against retaining any sitting justices, it’s most likely that advertising would appear starting in the last two to three weeks ahead of the Nov. 8 election, Brooks said.
Melissa Taylor Standridge: Official biography | Ballotpedia page
Standridge studied law at the University of Missouri-Kansas City after graduating from the University of Kansas. She worked for most of her legal career as chambers counsel for federal district judges in Kansas and Missouri. Standridge was appointed to the Kansas Court of Appeals in 2008 and to the Kansas Supreme Court in 2020. Standridge was not yet appointed to the Supreme Court when it issued its 2019 ruling that said the Kansas Constitution contains a right to abortion, but she did sign an opinion affirming the same right in the 2016 appelate court opinion on the same case.
Dan Biles: Official biography | Ballotpedia page
Biles, from El Dorado, studied journalism at Kansas State University and worked as a reporter in the Topeka press corps before attending law school at Washburn University. Biles worked in the Kansas attorney general’s office before moving into private practice. He was appointed to the Kansas Supreme Court in 2009. Biles concurred with the court’s 2019 opinion that said the Kansas Constitution contains a right to abortion and wrote a separate opinion.
Keynen “K.J.” Wall Jr.: Official biography | Ballotpedia page
Wall is originally from Scott City and earned degrees from Kansas State University and the University of MInnesota before graduating from law school at the University of Kansas. After a federal clerkship, Wall worked in private practice, with a brief stint as general counsel for the state Supreme Court before he was appointed to the bench in 2020. Wall was not yet appointed to the Supreme Court when it issued its 2019 ruling that said the Kansas Constitution contains a right to abortion.
Marla Luckert: Official biography | Ballotpedia page
Luckert, originally from western Kansas, attended college and later law school at Washburn University. She became a judge for Kansas’ 3rd Judicial District in 1992, and was appointed chief district judge — the first woman in Kansas to hold the position — in 2000. Two years later, she was appointed to the Kansas Supreme Court, and became chief justice in December 2019. Luckert sided with the majority opinion of the Supreme Court when it issued its 2019 ruling that said the Kansas Consitution contains a right to an abortion.
Evelyn Z. Wilson: Official biography | Ballotpedia page
Wilson, from Smith Center, graduated from Bethany College and later from law school at Washburn University. After working in private practice for nearly 20 years, Wilson was appointed to the bench in the 3rd Judicial District in 2004; she became chief judge of that court 10 years later. She was appointed to the state Supreme Court in 2020. Wilson was not yet appointed to the Supreme Court when it issued its 2019 ruling that said the Kansas Constitution contains a right to abortion.
Caleb Stegall: Official biography | Ballotpedia page
Originally from Lawrence, Stegall attended Geneva College and the University of Kansas law school. He now lives in rural Jefferson County, where he was the county attorney before working as chief counsel for Gov. Sam Brownback. He was appointed to the Kansas Court of Appeals in 2014, and the same year, was appointed to the state Supreme Court. Stegall dissented from the Supreme Court’s 2019 majority opinion on abortion rights.