Sixteen months from now Kansans will vote on a state constitutional amendment that will, if passed, institute popular elections for state supreme court justices. This possibility disturbs many Kansans, and it’s worth trying to understand why.
Today, Kansas has a mostly merit-based system for choosing supreme court justices; while the governor makes the appointment, they are required to choose from list of candidates prepared by a non-partisan committee of lawyers. It’s a fairly unique process, though some other states also take a similarly mixed approach to the filling of state judicial positions.
The idea of shifting to straightforward competitive elections for choosing justices is hardly unknown, however; 21 states have that system (which was also the selection process for judges that Thomas Jefferson preferred, for whatever that’s worth). So what is the fear?
Most say they’re concerned that judicial elections would result in huge amounts of money flowing into Kansas to influence voters one way or another, as was the case recently in Wisconsin, where over $100 million was spent in the last Supreme Court election.
The focus here is on the profound inequality and potential corruption which comes along with such expensive political races. These elements of contemporary politics are especially inappropriate for the judicial system, or so the argument goes, since it needs to stand as a neutral, non-partisan arbiter of constitutional disputes.
The first part of that fear of indisputably true; while direct connections between large campaign donations and quid-pro-quo-type corruption are rare, the reality of money’s indirect influence on the choices which elected leaders make is all but impossible to deny. But that said, I don’t know if the second part of that concern matters as much as some believe.
Basically, I’m dubious that the judicial branches of our state governments (much like the federal judiciary) have ever been or could ever be the entirely “neutral, non-partisan arbiters” of the law that many want to believe them to be.
It’s not as though Governor Kelly, when there was a vacancy of the Kansas Supreme Court, didn’t carefully investigate the suggested nominees, so as to avoid choosing someone ideologically committed to an agenda she opposed.
Which I think points to the real problem with adopting judicial elections in our current environment of essentially unregulated campaign money.
Put frankly: who are the sorts of people who are going to want to serve in the highest levels of our state’s judicial system if doing so will require extensive commitments to raising money and campaigning? Obviously, it’s more likely to appeal to those who, like most politicians generally, desire to promote specific political and legal agendas. So the result of electing justices may not be a corrupting of the judiciary, but rather simply making more obvious the political biases that everyone involved already possesses.
Maintaining a constitutional place for unelected judges in a democratic republic is no easy feat. There needs to be a role for public input; leaving justices entirely unaccountable to those whom their decisions affect is, I think, a sure recipe for discontent.
But on the other hand, inviting people entirely committed to their political agendas to put themselves forward as the judicial candidates we choose from could undermine the dispositions upon which the courts’ legitimacy depends.
In Kansas, state judges are already subject to retention votes, though they are almost never removed for that reason. Perhaps taking more seriously that aspect of the judicial selection process—by, for example, imposing term limits—could make for a more balanced reform of the system, rather than replacing it entirely?
Dr. Russell Arben Fox teaches politics at Friends University in Wichita.