Kansas voters this year came close to doing something they never have before: booting a state Supreme Court justice off the bench.
Justices Eric Rosen and Lee Johnson ultimately kept their jobs in an unusually high-profile retention election, the kind that ordinarily tends to draw scant attention at the bottom of the ballot.
Yet judges usually win elections deciding whether they should remain on the bench — and by margins often ranging upward of 70 percent.
This year, Rosen and Johnson only received 53 percent of the vote, the least support for a Kansas Supreme Court justice in a retention election.
The election marked a new era in Kansas where judicial retention elections could become high-stakes political battles, similar to what’s already happening across the country — and where millions are poured into judicial races.
“There will be more of these,” predicted Overland Park lawyer Greg Musil. “There’s still an agenda out there that perceives that the Supreme Court and the appellate courts of Kansas are way too liberal to be trusted.”
Political battles over the courts will likely intensify in Kansas because state campaign finance laws don’t cover retention elections for the Supreme Court, clearing the way for more “dark” money to filter into the state.
Some fear the loophole in the campaign finance law potentially puts even more pressure on justices to succumb to public opinion, perhaps tempting them to bend jurisprudence to appease an often angry electorate.
“This spells trouble for fair and impartial courts,” said Jim Robinson, a Wichita lawyer who leads the Kansas Bar Association’s legislative committee.
Once considered boring and sedate, elections over retaining judges are now becoming hotly contested battles stemming from controversial court decisions over same-sex marriage, abortion, school choice, crime and taxes.
Hard-fought judicial retention elections are hardly new. Voters knocked three California Supreme Court justices off the bench in 1986. But their potency is increasing nationally and in Kansas.
“Everything suggests they’re going to become increasingly more contentious where they look more like real elections,” said Vanderbilt University law professor Brian Fitzpatrick, who studies how judges are picked. “For a long time, they didn’t look like elections. They were coronations.”
This year, a national Republican group spent $200,000 unsuccessfully trying to unseat a Democratic circuit court judge in Missouri’s Cole County, where lawsuits are typically brought challenging the constitutionality of state laws and regulations in Missouri.
Iowa, Alaska, Colorado, Florida and Tennessee are among the states where campaigns have been run to remove Supreme Court justices from the bench.
Consider these examples:
A watershed moment may have come in 2010 when Iowa voters removed three Iowa justices who supported legalizing same-sex marriage. The campaign drew nationwide attention and cost $1.3 million.
Three Tennessee Supreme Court justices appointed by a Democratic governor won retention elections in August after they were the targets of conservative groups, including the same one involved in the Missouri election. More than $1.4 million was spent in that election. The justices were accused of being light on crime and biased against business.
Two years ago in Florida, the state Republican Party, backed by the conservative group Americans for Prosperity, campaigned to remove three state Supreme Court justices. All three were put back on the bench, but only after $5 million was raised to keep them there. Among other things, the justices were criticized for overturning a death penalty case and blocking a ballot proposal for slowing down the health care law known as Obamacare.
A similar campaign was waged in Kansas four years ago when abortion opponents took aim at Kansas Supreme Court Justice Carol Beier, who had been highly critical of former state Republican Attorney General Phill Kline’s handling of abortion investigations.
Beier, appointed to the court by Democratic Gov. Kathleen Sebelius, still finished with support from 63 percent of voters.
This year’s retention election in Kansas was fueled by the state Supreme Court’s decision last summer to set aside the death sentences of two brothers convicted of a quadruple murder in Wichita.
The justices ruled that Jonathan and Reginald Carr should have been given separate sentencing hearings and sent the case back to district court.
Angry over the court’s decision, a small group of family members and friends of the victims mounted a campaign against Rosen and Johnson, who also were appointed to the court by Sebelius.
The group’s cause was aided by Republican Gov. Sam Brownback’s re-election campaign, which produced ads linking his Democratic challenger to the court’s controversial decision overturning the death sentences.
In just a matter of weeks, Rosen’s and Johnson’s popularity eroded from the 70 percent they received the last time they stood for retention in 2008 to just under 53 percent in this year’s election.
An analysis by The Associated Press found that no Kansas justice — until this year — had received less than 62 percent of the vote in a retention election.
Observers believe this will not be the last high-profile retention election, especially because state law has an unusual gap that does not require disclosing who bankrolls a retention campaign for the appellate courts.
Utah is believed to be the only other state where similar campaigns for retaining judges don’t have to disclose the sources of their money. The group opposing the two Kansas justices declined to make that information available.
The fact that Kansas’ campaign finance law doesn’t cover retention elections for the Supreme Court opens the door to big-time spending to influence the court, especially in 2016 when two more justices will be up for retention.
Beier will be back on the ballot in 2016 along with Chief Justice Lawton Nuss, who’s openly feuded with lawmakers about court funding. Both could be exposed to the same type of campaign run against Rosen and Johnson.
“You’re going to have more judges looking over their shoulder wondering whether there’s going to be an outside deluge targeting them depending on their rulings,” said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan group that advocates for impartial courts.
And some lawyers believe that ultimately could undermine an independent judiciary and force judges to worry more about politics than the law.
“We do not want a basketball referee to reverse his call when the crowd boos,” said Robinson, the Wichita lawyer. “And we do not want courts to bend to political criticism and pressure.”
Some worry the dynamic could also put judges in the position of needing to raise money from special interests that might some day have issues before the court. “There are real concerns about judges becoming politicians in robes,” said Alicia Bannon, counsel at the Brennan Center for Justice.
The political climate is already precarious for the Kansas Supreme Court, which has been at odds with the conservative-controlled Legislature in recent years.
Conservatives, led by Brownback, have criticized the justices for authoring decisions colored by their political views. There have already been legislative moves to lower their mandatory retirement age and water down their power.
“There is a lot of concern about how the judiciary operates in this state and the country,” Brownback said in an interview. “People are getting more and more concerned and vocal.”
Conservatives have criticized the Kansas Supreme Court for overstepping its power in a landmark decision directing the Legislature to put hundreds of millions in additional funding into schools. They believe the Legislature — not the court — makes spending decisions.
Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers.
The justices stand for retention at the first general election after serving one year. They’re then up for retention every six years.
Brownback unsuccessfully tried changing that process for picking Supreme Court justices so he could appoint candidates with Senate consent.
Brownback is expected to renew those efforts next year.
“As long as you have retention elections and you have controversial decisions angering the right side of the Republican Party, the justices are going to be in for very difficult times,” said University of Kansas political scientist Burdett Loomis.
Some scholars attribute the higher profile of retention elections to the way states like Kansas pick their judges.
The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations.
About half the states choose their Supreme Court judges using screening committees similar to Kansas.
“These commissions are sending the governor names that are maybe not reflective of the political orientation of the state as a whole,” Fitzpatrick said.
When the courts block initiatives passed by conservative legislatures in deeply red states, the judges start attracting criticism.
“They are acting as a superlegislature,” said Matt Walter, president of the Republican State Leadership Committee, which helped fund campaigns against the retention of the Tennessee judges.
“Instead of testing whether or not something comports with the letter and spirit of the law,” he said, “they are inserting political ideology.”