More than half of the justices on the Kansas Supreme Court could soon be fired.
At least that’s the goal of some Republicans and advocacy groups in Kansas who are campaigning against four of the state’s justices up for a retention vote this fall.
Conservatives in Kansas have been feuding with the court during Gov. Sam Brownback’s two terms in office, focusing much of their frustration over how the judiciary has handled school funding issues and the case of two brothers convicted of robbing, raping, kidnapping and shooting five people in Wichita in 2000.
That anger is coming to a head in an election year where five of the seven justices’ jobs are on the line. Conservatives are not opposing the retention of Caleb Stegall, the only Supreme Court justice appointed by Brownback.
Justices aren’t elected, but do have to go through retention votes every six years to decide whether they’ll stay on. Most years, the judges are retained without much fuss. But in 2014 and again this year some have made a robust attempt to overhaul the state’s highest court.
“Normally it’s a tough sell,” said Bob Beatty, a political science professor at Washburn University. “Most voters have absolutely no information on judges so a lot of voters just don’t vote.”
Countering the push to oust the judges are four former Kansas governors. Kansans for Fair Courts started a media tour Tuesday in Kansas City, with former Republican governors Bill Graves and Mike Hayden joining former Democratic governors Kathleen Sebelius and John Carlin to talk about the ballot issue.
“There should not be political influence over the decisions of the court,” said Hayden, governor from 1987 to 1991. “That’s one of the main reasons we’re here today, to stand for that separation of powers.”
In a stop at Union Station, the governors voiced their concern that voters might not understand what’s at stake. The event was open to the media but not the public.
“We’ve seen an unprecedented assault on the judiciary in the last number of years in Kansas,” said Sebelius, governor from 2003 to 2009. “Something that none of us ever experienced, I think, when we served as governors. This is an unusual time.”
Among the four governors on their media tour Tuesday, there was concern about what could happen if all five of the justices, or even a handful, are voted out on election night.
“They’re not allowed, nor will you see them out campaigning on behalf of themselves,” said Graves, governor from 1995 to 2003. “Someone has to speak for the justices. We’ve chosen to do that.”
The governors aren’t opposed to the retention process, said Carlin, governor from 1979 to 1987. But voting against judges also shouldn’t become routine, he said.
“If every year, there was this campaign to get rid of a bunch of judges ... it would in my opinion severely damage the interest of a lot of really quality people to even be on the bench,” Carlin said.
Kansans for Life, a conservative pro-life organization, is also trying to oust four of the justices. It created a group called Better Judges for Kansas that’s trying to unseat every justice but Stegall.
Mary Kay Culp, executive director of Kansans for Life, said the group got involved because there was concern about the justices’ views on abortion issues.
“This will be a challenge for sure, no question,” Culp said. “...There’s no hesitation. You jump in and you do everything you can.”
The heat against the court isn’t coming just from conservatives, who often describe the justices as “activist judges.”
Kansans for Justice started because of the court’s decision in the case of Jonathan and Reginald Carr, two brothers convicted of multiple counts of murder, kidnapping and rape in Wichita.
The state Supreme Court vacated their death sentences in 2014, saying that the two should have been sentenced separately.
The U.S. Supreme Court later reversed the court’s decision.
Kansans for Justice tried unsuccessfully to oust two of the justices in 2014. Though both justices were retained, they only got 53 percent of the vote.
This year, the coalition of grieving family members and friends of the victims think they have a chance at removing four of the justices responsible for the court’s earlier decision.
The group is small, said Amy James, who was dating Brad Heyka when he was killed by the Carr brothers in 2000, and has Republicans and Democrats among its ranks.
“That will bring some much-needed change to the court system,” James said. “The justices have just made mistake after mistake after mistake. It’s time to say something.”
Brownback has been mum on the issue as of late, even though he has frequently criticized the court during his time in Topeka. During his 2014 re-election campaign, Brownback tied the issue of judicial selection to the Carr brothers case.
The governor is staying out of the race this year, his spokeswoman Eileen Hawley said in an email.
“While the governor is pleased there is a discussion about the future of the judiciary in Kansas, he doesn’t plan to take a position on the judges up for retention,” Hawley said.
The Republican Party in Kansas is against four of the justices returning to the court. But their campaign isn’t expected to extend past emails and social media posts. An email from House Speaker Ray Merrick’s account last month on behalf of the Kansas House Republicans said that “Kansas Deserves Better” and asked conservatives to vote against every justice on the ballot, save Stegall.
“We’re not spending any money,” said Clay Barker, the Kansas GOP executive director. “We’re not doing anything major.”
Barker said he expects to see outside money start pouring into the retention race. But finding out who’s bankrolling the campaigns could be another matter.
Unlike Kansas political campaigns for governor or the House and Senate, judicial retention races aren’t covered by the state’s campaign finance rules.
“I think there’s going to be a lot of money thrown into these retention races,” Barker said. “That’s again something new.”