Steve Kraske: It’s time for Missouri and Kansas to rethink all things judicial

The leader of the Missouri Senate has fired a warning shot: He wants to replace Missouri’s long-standing process for selecting judges.

The reason? The state’s much-copied Non-Partisan Court Plan isn’t working, Ron Richard said. What’s more, that plan has produced a series of high-court judges who have gone rogue.

That phrase — “gone rogue” — was suggested by a Missourinet reporter. Richard bought it.

“Can I use that quote?” the Republican senator from Joplin asked.

In Kansas, conservative Republicans have expressed a similar sentiment in recent years, and last year they tried to oust several members of the Supreme Court in November’s retention election.

Big money was spent in that race. Four former Kansas governors — two from each party — rallied to back the sitting jurists. They all survived, but some analysts had forecast early on that as many as four might be booted out in a move that would have allowed Gov. Sam Brownback to reshape the court.

Even during a campaign with their names on the ballot, sitting judges can say little. They are forced to rely on advocates to come to their rescue. They are sitting ducks as charges and broadsides are fired. It’s ridiculous.

We live in partisan times, and the problem now is that partisanship increasingly extends to our courts, which are supposed to be beyond red and blue. That’s the idea, right? Judges should make decisions without fear that their rulings could cost them their jobs in the next retention election. They are supposed to be independent.

But that’s tough to do when more than ever, their decisions are viewed not on their merits, but through a political lens. The Kansas Supreme Court, the members of which were appointed by both Democratic and Republican governors, just ruled that a massive spending increase is required to fund schools. Conservatives didn’t like it, and that issue was seen as the main reason the far right wants a new court.

In Missouri, Richard was peeved about a state Supreme Court ruling that allowed St. Louis to establish its own $11 an hour minimum wage. That’s higher than the state’s $7.65 rate.

“A perfect example,” Richard said of run-amok judges.

Richard also chafed at the recent panel of three judges sent to Gov. Eric Greitens for an opening on the Supreme Court. Only one was conservative, Richard said. He said all three should have been.

This all amounts to too much politics for our courts. So let’s consider two proposals:

▪ The complaint about the way both states select Supreme Court judges centers on the panel that picks three names to send to the governor for his selection. The beef is that too many members of that panel are attorneys. In Missouri, three of the seven are lawyers elected by the Missouri Bar. Let’s knock that number down to two. The lawyers won’t like it. After all, they work most closely with the judges. But let’s not kid ourselves. Politics gets played at that level, too.

This is better than tossing out the entire process and starting over with electing judges, a loathsome idea, or one in which the governor appoints and the Senate confirms, a process that’s too political. (Witness the Neil Gorsuch Supreme Court fight in Washington).

▪ To further wring out the politics, let’s consider 10- or 12-year appointments to the bench without retention elections. Yes, that removes the public from the process. But the public is too disconnected from the judiciary and rarely rejects judges anyway.

It’s time for a tweak. Public confidence in judges is waning. Too much money is spent on retention elections. In fact, $20 million was spent across the country last year, often by anonymous “dark money” groups, including some in Kansas.

The time has come for new thinking.

This story was originally published March 23, 2017 at 8:30 PM with the headline "Steve Kraske: It’s time for Missouri and Kansas to rethink all things judicial."