Kansas Liberty: 21 August 2009
It's the one election that could really make a difference in Kansas. But one of the court's most aggressively liberal justices likely will get a free pass from Republicans in 2010's retention election.
Republicans won't campaign against Justice Beier in 2010
Critics say she legislates from the bench in matters like school funding, pushes for higher tax rates when she can, backs every liberal cause she can find and uses her seat on the bench to wage personal battles against conservatives she despises — most notably, former Attorney General Phill Kline.
But in 2010, when Kansas Supreme Court Justice Carol Beier comes up for a retention vote — giving voters their only opportunity to release the liberal chokehold on the state Supreme Court — she'll get a wink and a nod from most conservative politicians. And from the state's Republican Party, she's not likely to hear even an unkind word. For them, the burning question is should it be Tiahrt? Or Moran?
There's a reason for such blatant indifference. Stephen Ware, professor of law at the University of Kansas School of Law, said conservative Republican leaders aren’t focusing on the retention vote because they think their efforts would not likely pay off.
“I wouldn’t expect opponents of Justice Beier — or any other Kansas justice — to try to defeat her at the ballot box, because the so-called 'elections' used for Kansas justices are designed to give incumbents an easy win,” Ware told Kansas Liberty.
Justices are nominated in secret by a panel dominated by attorneys, then appointed by the governor without any confirmation hearings or any other kind of public scrutiny at all. Their names are not usually even known by most of the state's voters. It's a bizarre — some say corrupt — system that Judge Andrew P. Napolitano, Fox News senior judicial analyst, once described to a reporter as "unheard of."
The only input the voters of Kansas have in the running of the state Supreme Court is in a retention vote a justice must face after a year in office, and then every six years after that.
Retention votes simply ask Kansans to check “yes” or “no” to retain a justice. A justice who receives a simple majority of approval votes keeps his position. Beier's last — and only — retention vote so far was in 2004, which she passed with an approval of 76.48 percent.
“With no opposing candidate, there's no one with an incentive to raise money for a challenge and to advocate change,” Ware said. “So voters don't see the sort of discussion of the issues that would spark an interest in the judiciary. This lack of interest by the citizenry allows lawyers to decide the liberal or conservative direction of the courts because lawyers play the dominant role in initially selecting justices and then those justices stay on the court until retirement because they face no challenge from meaningful elections.”
The selection process begins when the Kansas Supreme Court Nominating Commission selects three nominees out of a pool of candidates in closed-door sessions. The commission is a nine-member group dominated by attorneys. The remaining non-attorney members are appointed by the governor. Each time former Gov. Kathleen Sebelius had the opportunity to appoint a non-attorney member to the commission, she selected a Democrat.
The three judicial nominees are forwarded to the governor, who then makes the final appointment. Should voters say a justice should not be retained, the entire application process would be repeated, with the same commission dominated by Democratic lawyers selecting other nominees in secret.
There has never been a case when a Supreme Court justice failed to gain the necessary retention vote. In fact, there has only been one judge in Kansas who failed a retention vote, R.E. Miller, a Lyon County judge who was voted out in 1980. Miller failed his retention vote after allegedly threatening to burn down the attorney general’s house.
Ware referred to retention elections as “rubber stamps” and "something of a fraud."
“They’re a way for the powerful insiders who control our courts — members of the state bar — to claim the public’s involved in selecting justices,” he said.
Sebelius selected Beier to serve on the Kansas Supreme Court in 2003. While a gubernatorial candidate, Sebelius received substantial financial backing from those associated with the abortion industry, and when elected, went on to veto any attempts by pro-life legislators to strengthen Kansas’ abortion laws.
Beier worked as an attorney for the pro-choice National Women’s Law Center, a group that says it supports “women’s right to safe, legal abortion, which includes judicial nominations advocacy to ensure that the courts do not undermine the right to chose.”
Beier drew publicity in late 2008 when she wrote a scathing criticism of pro-life former Kansas Attorney General Phill Kline in the Supreme Court's opinion for Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri vs. Kline.
Although Beier roughly chastised Kline in the opinion in an apparent effort to make it appear he had lost the case, the Supreme Court actually ruled in favor of Kline on each substantive argument. However, Beier's language was so intemperate that two justices — including Kay McFarland, the outgoing chief justice — distanced themselves in writing from the angry justice's invective. The state's media, however, used Beier’s language when reporting on the case to make it appear Kline had lost.
Kline, who works as a visiting assistant professor of law at the Liberty University School of Law, also said he thought Republicans were not heavily promoting a retention-vote upset because they are aware of how unlikely it is to defeat a Kansas Supreme Court justice on a retention vote.
“You would have to spend millions and you would likely lose,” Kline told Kansas Liberty. “Retention elections are generally meaningless.”
Recent court decisions have been controversial. One recent set of decisions eased the sentences given to child sex offenders, while another cost taxpayers nearly $1 billion in mandated funding increases for education. Kline and Ware said if the public wants to change who serves on the state’s highest court, the best avenue would be for legislators to step in and change the process in which justices are selected.
“If the people of Kansas want a say in the direction of their courts, then they need to get their legislators to support bills that would change how justices are initially appointed to the court,” Ware said.
Kline said changing the appointment process and the composition of the Supreme Court would affect the way laws are interpreted.
“If you had an experienced Supreme Court, then you would not have the laws in such a state of flux because you would not have a court that would attempt to usurp the legislative process,” Kline said. “It would respect the law and the constitution. Instead, you have a very activist court that is driven by result, and that breeds uncertainty in law. You are looking for a court that recognizes the difference between the role of a justice and the role of a legislator.”
Rep Lance Kinzer, R-Olathe, has been a long-time advocate of trying to change Kansas’ selection process so that it resembles the federal level’s method of selection. At the federal level, Supreme Court justices are subject to Senate confirmation after they are appointed by the president.
“Reform of the overall selection process would be something Republicans and Democrats alike could join together and make a point of emphasis,” Kinzer told Kansas Liberty. “A system that looks more like the federal system would be superior. I am placing my time and my attention not on any particular retention election, but on proposing beneficial reforms to the overall process.”
Ware, however, sees little likelihood of that strategy succeeding. “Most conservative Republicans in the Legislature support bills that would make this process more open and democratic," he said. "Unfortunately, 'moderate' Republicans and Democrats in the Legislature have generally opposed reform.”
But not all conservatives have thrown in the towel.
Some seem aware of the implications of leaving Kansas' high court untouched by voters' concerns. Charlotte Esau, for example, executive director of the Kansas Republican Assembly, mirrored the concerns of many that enforcement of the law, not passing new ones, is the big problem for conservatives in Kansas. As long as the state Supreme Court remains safely liberal, abortion, taxes, gaming and a host of other conservative causes will likely continue to frustrate many center-right Kansans.
As Esau told Kansas Liberty, legislators can work tirelessly to get laws on the books, but if the Kansas Supreme Court disagrees with the intent of the law, it can simply reverse the will of the Legislature.
“It doesn’t do us any good to elect representatives and senators if the laws they pass are not backed up by the courts,” Esau said. “So we have to look at the whole package.”
Esau said the KRA is considering pursuing some type of campaign to have Beier voted out.
“It is an issue we have been very interested in, as we have seen what happens when the courts don’t back up the law,” Esau said. “So I am absolutely sure we will be evaluating if this is a fight worth getting into to try and not retain a Supreme Court justice. It is our only way of having any influence over who is on the Supreme Court, so it is definitely an area of interest for our organization and our members.”
But the Kansas Republican Party responded with “no comment” when asked if it would become involved with attempting to unseat Beier. The Republican Party nationally has been losing ground, even though polls show more Americans are becoming increasingly conservative.
Mary Kay Culp, Kansans for Life executive director, said KFL members would be discussing the possibility of launching some type of campaign against Beier, but that nothing definitive had been determined yet.
“I can’t imagine a candidate being more deserving of not being retained than Carol Beier,” Culp told Kansas Liberty.
According to the secretary of state’s office, the current political makeup of justices on the Supreme Court is three Democrats, three Republicans and one unaffiliated.
The secretary of state’s office did not have registration information on Justice Marla Luckert, but a search with Luckert’s husband's last name “Morse” showed that Marla Morse was a registered Republican.
According to a Kansas Meadowlark report, Luckert has also been registered as a Democrat but switched to the Republican Party in 2006 for unknown reasons.
The most recent appointee to the high court is Dan Biles, an unaffiliated voter selected by Sebelius to replace McFarland, a Republican.
Though Biles is registered as an independent voter, he appears to be a supporter of the Democratic Party. Prior to becoming a Supreme Court justice, Biles worked as a law partner of Larry Gates, chair of the Kansas Democratic Party. In the last election, Biles was also a political contributor to Democrats, including Sebelius and President Barack Obama.
The Supreme Court demonstrated its ability to trump the will of the Legislature in the case of Montoy vs. State of Kansas in which the court demanded legislators fund schools at a significantly higher level than they had approved. Sebelius-appointee Biles worked on behalf of the school district administrators in the lawsuit.
Planned Parenthood vs. Kline
Kansas Meadowlark report on Luckert’s change of party
Stephen Ware on Kansas' judicial selection for the Federalist Society:
Denis Boyles on the Supreme Court's campaign against Phill Kline: http://article.nationalreview.com/?q=NzM3MGM4ODEyNTM0MTA2YWJhODNhNzRlYjZiZDgyNjQ=&w=MA==