The Johnson County Post does a great job of pre-election reporting. In an unusual situation, I wrote the following email to their editor (Kyle Palmer) suggesting that the Post could do a better job on the proposed KS constitutional amendment to elect judges. If you want to know how I currently lean, look past the asterisks near the bottom of this post.
A key piece of information in this article is: “The
actual judicial selection process occurs in meetings that are available to the
public, both online and in person. All records created during the process are
public, as well.” Can you distribute an
appropriate recording and/or records, so voters can judge how the system is
working? Data you pick, not one
that is selected for you.
I’m quite torn on this issue. On the one hand, I like merit and don’t trust
the politicians pushing this issue. On
the other hand, it is far from clear that the current system is a good one and
just because I don’t favor someone does not mean that they aren’t right on some
issues. Our USA Supreme Court had a good
approach: selected by the President, confirmed by the Senate. But then
the Senate decided to start “Borking” candidates, and candidates became
extremely disingenuous in responding to questions. Our political system works best when politicians
and regulators work in good faith; that has been becoming less common.
Many of the arguments are bogus. I think you could do a better job of demonstrating which arguments are
bogus as I will outline below.
Before
citing bogus arguments, I’d like to note what I think is a key point that I
have not seen reported: Elections will pressure judges to take a position before hearing a
case. They should decide only after
hearing both sides’ attorneys and discussing the principles with their
peers on the bench. In an election, they will be pressed to take a
position, which will then somewhat paint them into a corner.
Two recent Johnson Post articles say: “It
would also open the door for justices to participate in political parties and
campaigns and to contribute financially to them, though a lot of details about
how that might work remain undecided.”
The current law says:
§ 8. Prohibition of political activity by
justices and certain judges. No justice of the supreme court
who is appointed or retained under the procedure of section 5 of this article,
nor any judge of the district court holding office under a nonpartisan
method authorized in subsection (a) of section 6 of this article shall directly
or indirectly make any contribution to or hold any office in a political party
or organization or take part in any political campaign.”
The suggested law says:
§ 8. Prohibition of political activity by
justices and certain judges. No judge of the district court
holding office under a nonpartisan method authorized in subsection (a) of
section 6 of this article shall directly or indirectly make any contribution to
or hold any office in a political party or organization or take part in any
political campaign, except when such judge is a candidate for election
to a position on an appellate court.”
The intent
seems to be that a judge to contribute to and participate only in
his/her own political campaign. Should that be reported? I suppose the wording could be interpreted to
mean that when they are a candidate, they could also contribute… to other
campaigns. If that is a concern, it
would be good to report the wording and mention that ambiguity.
“nominees’ political affiliation is not
factored in at all”. However, with such a thorough process, the
candidates’ leanings are likely to be obvious, even without specifically asking
about their political affiliations. Is
there any way the Post can identify how recent judges have divided politically? Is there any way the Post can
identify whether members
of the KS bar and, more importantly, those voting in the nomination process,
reflect the distribution of political leanings of the public?
Judges
should make decisions based on the law, not what they think is popular. (Good
point.) But the anti-amendment people claim
that the change is fueled by people who don’t like the abortion, hence will result
in abortion not being protected. Kansans voted 60% to keep abortion
legal, so if judges are swayed by what is popular, wouldn’t that protect
abortion?
People
already get to vote to retain a judge. Retention elections are not meaningful. Judges run uncontested and there is no
information. No KS Supreme Court justice has ever
lost a retention election in well over 100 retention elections.. (Shouldn’t
that be reported?) Even the judges who
overturned the Carr murder sentences were retained Even if there was information, there would be a
strong incumbency bias.
The
law was changed ~60 years ago because of corruption. But past corruption had NOTHING
to do with the voting process! The
Fred Hall “Triple Play” occurred because there was NO election for between-election
vacancies. By the same token, “by the
1940s, that practice was falling out of favor due to concerns about corruption
from wealthy individuals essentially buying seats on courts with large campaign
contributions” relates to people buying appointed judge seats, not elected
judge seats. (To be clear, the concern
that large local and outside donations could sway elections is a valid
concern.)
21
states use a model like KS. Pro-amendment supporters note that the other
states have the same number of attorneys and non-attorneys with an additional
attorney who votes only as a tie-breaker. They criticize KS as being the
only state with a majority of attorneys always voting. That criticism
doesn’t make sense to me. The attorneys’ advantage in having 5 members on the commission is
relevant only in 5-4 votes; hence it is no different than a tie-breaker.
The
Supreme Court has heard 8 KS cases since 2007 and overturned 7 of them.
This is pertinent but not a huge point. Nationwide since 2007, the
Supreme Court has overturned 71.4% (938 out of 1313). If this is
reported, it should be noted that one less KS reversal would drop the KS
percentage to 75% like the rest of the country. So, this data does not
seem reliable. The Supreme Court agrees to hear very few cases, thus they
pick ones that they are likely to overturn. The volatility of these
statistics is confirmed because, prior to 2007, KS had a low percentage
overturned (about 55%) whereas the rest of the USA was about 73%.
I
haven’t yet watched the event your article cited. It appears that both participants are
anti-amendment, but that wasn’t highlighted.
When I watch it, I might decide that it is balanced.
***************************************************
If
the election was today, I would vote against the amendment for the following reasons:
- Judges are inherently different from legislators and
the governor. They should make
decisions based on the law, not what they think is popular.
- Elections would pressure judges to take a position
before hearing a case. They should
decide only after hearing both sides’ attorneys and discussing the
principles with their peers on the bench.
- The proposed wording is ambiguous.
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