Liberty Opinion: 11 September 2008
Curtains up on the Kansas Commission on Judicial Performance, a Topeka parody of a democracy where only the lawyers vote. Caleb Stegall reviews the passing charade.
For years, petty dictators in banana republics have hidden behind the farce of popular sovereignty. Saddam Hussein was repeatedly elected President of Iraq with 100% of the vote. Cubans kept Fidel Castro in power for over fifty years on the strength of “free elections.” So too, various sub-Saharan potentates regularly follow military coups with stunning electoral successes. Who can argue with the will of the people?
Still, not many in western democracies take these results seriously. As one British official put it after Iraq’s 2002 elections: “You can’t have free elections when the electorate goes to the polls in the knowledge that they have only one candidate and the penalty for slandering that sole candidate is to have one’s tongue cut out.” Indeed.
Enter the Kansas Commission on Judicial Performance, a group established by the Kansas Legislature in 2006 to “grade” our judges and tell Kansans—sorry, “recommend”—whether they ought to be retained. The Commission, like everything else concerning our third branch of state government, is in the vice-like control of the Kansas Bar, an exclusive club of Kansans whose only qualification (such as it is) for rule is having passed the bar exam.
Most Kansas judges (and all appellate judges in the state) are selected by the Bar and then required to stand for regular “retention” election. During these elections, the judge’s name is the only one to appear on the ballot, with the voter able to either check “yes” or “no” to the question: “Shall this judge be retained?” Not surprisingly, judges are systematically and universally retained by huge margins (see, e.g., Iraq, above).
In recent years, some friends of liberty have become concerned with the clear unaccountability of the judiciary to the people. These stalwarts of democracy have advocated various judicial reform measures intended to wrest control of the judiciary away from the lawyers and place it back with the people. To calm these concerns, the Commission on Judicial Performance was created to evaluate judges; provide voters with allegedly “objective” performance ratings; and give a recommendation on how to vote.
Lost in all of the newspaper reports on the Commission’s “recommendations” is the astonishing fact that our government is now telling us how to vote.
Far from providing greater citizen control over the judiciary, however, the Commission actually cements the status quo. By giving the Bar a monopoly on the right and ability to render decisions on who is or is not fit to hold public judicial office, the Legislature has entirely abdicated its responsibility to maintain a republican form of government.
Lost in all of the newspaper reports on the Commission’s recent “recommendations” is the astonishing fact that our government is now telling us how to vote. This simple truth should offend and outrage all freedom loving small-d democrats and small-r republicans in our great state.
Digging into the inner workings of the Commission provides cause for deepening alarm. For example, a significant portion of the judicial evaluation is based on the judge's "legal ability" which includes whether the judge uses his "discretion to reach a fair decision." It is simply untenable to argue that such standards can be measured in any "objective" fashion.
Similarly, a large component of the evaluation of district court judges is the opinion of appellate court judges. Now, apparently, in addition to the constitutional authority to overrule a lower court, our higher courts have been given the power to determine which district court judges are suitable for office.
Still more troubling is the rule adopted by the Commission that: “All judges are expected to cooperate with the efforts of the Commission to evaluate their performance. Failure or refusal of a judge to cooperate may be considered by the Commission in its evaluation.” Resistance is futile! O for one judicial hero of the people who would stand up to this blatantly anti-democratic power-grab and tell the Commission and its “performance review” to go to hell, come what may.
Finally, the astute observer will note that the Commission is given tremendous power to disseminate its “recommendation,” including taking out tax-payer funded paid advertisements. Pity the poor judge who gets on the wrong side of this Commission.
This is not a partisan point. The consolidation of power in the hands of the few is the enemy of any free society, especially when it occurs under the guise of giving more power to the people.
The picture painted by all of this ought to deeply trouble every engaged citizen of the state. This is not a partisan point. The consolidation of power in the hands of the few is the enemy of any free society, especially when it occurs under the guise of giving more power to the people. Make no mistake, the Commission is a powerful tool for further centralization of judicial power in the hands of an unelected few and it is a frightening deterrent to anyone who might harbor a dissenting view. It’s true, no tongues will be cut out, but bucking the system will now, more than ever, be considered an act of professional suicide, for judges and lawyers alike.
And, in fact, the system will generate exactly what it is intended to generate. A “unanimous” (or near unanimous) government hiding behind the fiction of being “freely elected” by an “educated and informed” public. As Castro’s dissidents can tell you, if this is being educated, please let me be ignorant and free!
The sacred cow of “judicial independence” is the rejoinder so often proffered by defenders of our current system. And it’s true, judicial independence from the other branches of government is vital to our system of a divided government of checks and balances.
We have now entered a period of judicial captivity, not to another branch of government, but to a wholly unelected group of shadow rulers.
But the judiciary was never intended to be independent of the people. A system of selection and retention controlled by the Kansas Bar isn’t judicial independence but its opposite—for we have now entered a period of judicial captivity, not to another branch of government, which would be bad enough, but to a wholly unelected group of shadow rulers.
The judiciary, like the rest of our government, legitimately draws its power from only one source—the people. And until that fact is properly recognized and structurally accounted for either through competitive direct elections or through unfettered executive nomination and legislative consent with life tenure (the Federal system), the true democrat has only one option at the polls: make your protest heard and vote against the Commission’s recommendation.
Kansas Liberty columnist Caleb Stegall is a lawyer and writer in Perry, Kansas. His book on the history of prairie populism in Kansas is forthcoming from ISI Books in 2009.
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