Sen. Jerry Moran of Kansas slipped up.
Meeting with a handful of constituents this spring, the Republican said he’d be willing to hear from Merrick Garland, the judge President Barack Obama nominated to a seat on the U.S. Supreme Court.
“I think we have the responsibility … to have the conversation,” Moran said.
Conservative blowback was immediate and fierce. “Judas Iscariot,” one group thundered. “Caving in to President Obama,” said another. Twitter dripped with scorn. Primary challengers surfaced.
Within a few days, a chastened Moran flipped his position, joining other Republicans to block Garland’s nomination.
Moran had also learned an important lesson. This year, the fiercest political battles aren’t just about candidates. They’re about judges and the courts.
Those conflicts, from the U.S. Capitol to Kansas, worry many legal experts. While complaints about legal rulings are as old as the republic, they say, politicians have started turning virtually every race into a referendum on the courts, threatening public confidence in an independent, apolitical judiciary.
“We are at an incredibly crucial period,” said Katie McClaflin, president-elect of the Johnson County Bar Association. “Judges are not going to be able to make fair and impartial decisions, based on the law, if they are beholden to a political party or to politicians.”
Not everyone is equally concerned. In a polarized, dysfunctional political climate, some say, making judges more accountable to voters and taxpayers is healthy and inevitable.
“It’s actually a very good thing that people are focused on the extent to which the judicial branch has become the tie (breaker) on important issues,” said Edward Greim, a Kansas City lawyer and a member of the Federalist Society, a right-of-center legal group.
Regardless of the public’s perception, partisan warfare over the power of judges and the courts now seems a simple fact, a key part of the public dialogue across the country:
▪ The next appointment to the U.S. Supreme Court may become the signature issue of the 2016 race for president.
▪ Kansas voters are facing a multimillion-dollar fall campaign over the fates of five state Supreme Court judges, sparked by a controversial ruling on school finance. Lawmakers are considering constitutional amendments further limiting the authority of the court.
▪ Arizona is adding two judges to its Supreme Court, a move critics say is designed to dilute the judges’ influence. Meanwhile, Washington state is thinking about shrinking its high court, a move also intended to exert political control over the bench.
▪ The head of Georgia’s judicial oversight commission just quit, complaining about political interference with the bench. A vote to change the state’s court system is on the November ballot.
▪ Voters have argued this year over the limits of judicial power in Arkansas, Oklahoma, Pennsylvania and Wisconsin.
One Supreme Court seat — Antonin Scalia’s — remains empty more than four months after his death. Republicans have blocked any consideration of Garland, nominated for the Scalia seat.
But that stalemate will end next year. And other justices may be nearing retirement, potentially handing the next president three or four nominations in his or her first term.
Republican leaders have repeatedly warned voters squeamish about Donald Trump that his defeat would likely hand Hillary Clinton those picks. Some Republicans pressured Trump to release a list of potential Supreme Court nominees, an unprecedented request of a presidential candidate, in order to calm fears about the court.
On MSNBC Thursday, Ohio Gov. John Kasich refused to endorse Trump. But when asked what most concerns him about Clinton, the Republican said the Supreme Court.
“I’m talking about the ability of a court to start basically running our economy,” Kasich said. “That’s something that weighs on a whole lot of people.”
Democrats are equally aggressive. “President Donald Trump would transform the Supreme Court and upend our most fundamental rights,” the Clinton campaign said in mid-May.
The back-and-forth will clearly be a key part of fall messaging by the two major party candidates. Many partisans believe the most important decisions — abortion, health care, education, civil rights — now rest largely in the hands of judges, not elected officials.
“The issues they’re deciding are core issues,” said Greg Musil, a Kansas lawyer and former candidate for the U.S. House. “They balance individual freedoms and societal freedoms.”
It isn’t clear if that focus on the courts will move lots of rank-and-file voters. “My guess is that it will be a secondary issue in most (elections), eclipsed by the economy, national security and other topics,” said Peverill Squire, a political science professor at the University of Missouri.
Larry Sabato, a political science professor at the University of Virginia, agreed. But he said court nominations are extraordinarily important for special interests and activists, giving the issue outsized influence in fall campaigns.
“The courts matter to voters and interest groups that really pay attention,” he said. “They matter since they are opinion leaders and give money and volunteer time.”
Indeed, campaign fights over judicial authority may be less about specific judges than they are about energizing core supporters. Both parties use anger over court decisions to motivate voters: Sen. Bernie Sanders, for example, routinely criticizes the Supreme Court’s Citizens United decision expanding campaign finance rights, explicitly promising to appoint judges who would overturn the ruling.
In Kansas, Gov. Sam Brownback has bitterly and repeatedly denounced the state Supreme Court for its rulings on school finance. “Kansas has among the best schools in the nation, and an activist Kansas Supreme Court is threatening to shut them down,” he said in February.
The court has said the state’s blueprint for funding its schools is still unfair to poorer districts. Without a fix, the justices said, the schools couldn’t legally operate after June 30.
The ruling, which echoed similar decisions in other years, infuriated lawmakers, who insist it’s their job to decide how money is spent in the state. They’re also watching nervously — later this year the court will hear arguments over a claim lawmakers have unconstitutionally underfunded the schools as well.
Brownback has proposed significant changes in the way the state’s Supreme Court judges are picked. Under the current system, a panel made up of five lawyers and four non-lawyers recommends a list of candidates to the governor, who then chooses one.
The Legislature isn’t involved in the process. Judges must stand for public retention votes.
Five state Supreme Court justices — Carol Beier, Dan Biles, Lawton Nuss, Marla Luckert and Caleb Stegall — face retention votes in November. Groups associated with some of the judges are raising money for their retention campaigns, while opponents may pour millions into ads against the judges.
Democrats claim Brownback has targeted the judiciary to distract voters from the state’s economic problems. Meeting Thursday in Topeka, GOP lawmakers and conservative lobbyists blistered the justices, insisting they’ve overstepped their authority.
“Legislation by judicial fiat I don’t think is good, because the people have no input,” said state Sen. Greg Smith, a Lenexa Republican. “That’s what the Legislature is for, is to make the laws.
Kansas state Rep. Melissa Rooker of Fairway, though, called repeated criticism of the court dangerous.
“I think there is a clear and present danger in bashing the courts the way we’re seeing,” the Republican said. “This is the fabric of our democracy.”
Other states have seen similar battles. Three Iowa Supreme Court judges were ousted by voters in 2010 after the court legalized same-sex marriage in the state. Some legal experts expect a similar fight in Kansas.
“We have seen in Kansas an unprecedented focus on changing judges,” McClaflin said. “Unlike anything we’ve ever seen in the history of our state, and incredibly crucial.”
And Missouri may revisit its long-standing argument over the way state judges are picked. Missourians fought over changing its judicial selection process several years ago but made no changes.
James Harris was involved in that fight and says it could come around again.
“There is a growing dialogue nationally over state courts,” he said. “We all agree we don’t want politics to be the primary factor.”
The debate over the role of judges in government may have reached a fever pitch this election year, but it is likely to continue for decades. Elected officials, who routinely face bitter criticism, say judges aren’t immune from public review.
“I don’t consider it court-bashing,” said Kansas state Sen. Jeff King, an Independence Republican and chairman of the Judiciary Committee.
“Am I frustrated?” he asked. “I most certainly am. And I think the people of Kansas are frustrated.”