Nowhere is the battle over judicial decisions and the judges who make them more fiery than Kansas, where Gov. Sam Brownback and other conservative Republicans are seeking to reshape the state Supreme Court.
TOPEKA, Kan. — The nation’s capital is locked in partisan warfare over control of the Supreme Court. But it is not the only place. Look at the states, where political attacks on judicial decisions are common and well-financed attack ads are starting to jar the once-sleepy elections for state Supreme Court seats.
Nowhere is the battle more fiery than Kansas. Gov. Sam Brownback and other conservative Republicans have expressed outrage over state Supreme Court decisions that overturned death-penalty verdicts, blocked anti-abortion laws and hampered Brownback’s efforts to slash taxes and spending, and they are seeking to reshape a body they call unaccountable to the right-tilting public.
At one point, the Legislature threatened to suspend all funding for the courts. The Supreme Court, in turn, ruled in February that the state’s public schools must shut down altogether if poorer districts do not get more money by June 30.
“A political bullying tactic” and “an assault on Kansas families, taxpayers and elected appropriators,” is how the president of the Senate, Susan Wagle, a Republican, responded to that ruling, which was based on requirements in the state constitution. Brownback spoke darkly of an “activist Kansas Supreme Court.”
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In March, in the latest salvo, the Republican-controlled Senate passed a bill to authorize impeachment of justices if their decisions “usurp” the power of other branches. The climactic battle is expected in the November elections, when conservatives hope to remake the seven-member Supreme Court in a flash, by unseating four justices regarded as moderate or liberal.
Partisan conflict over courts has erupted in many of the 38 states where justices are either directly elected or, as in Kansas, face periodic retention elections, without an opposing candidate. As conservatives in Washington, D.C., attempt to preserve a majority on the U.S. Supreme Court, conservatives in several states are seeking to reshape courts that they consider to be overly liberal vestiges of eras past.
“We’ve seen this tug of war between courts and political branches all around the country,” said Alicia Bannon, a senior counsel at the Brennan Center for Justice at New York University.
Television spending in the election of two justices in Arkansas on March 1 reached $1.2 million, and candidates attacked as being too cozy with trial lawyers were defeated there, in part with money from outside business interests.
In Wisconsin, where a court seat will be filled in an election April 5, ads sponsored by out-of-state groups from the left and right have helped push total campaign spending to more than $2.6 million, according to data gathered by the Brennan Center and Justice at Stake, a nonprofit group in D.C. that promotes judicial integrity.
On the other side, unions and plaintiffs’ trial lawyer groups last year spent about $2.9 million in Pennsylvania on television ads that helped elect Democratic candidates to three Supreme Court seats.
In Oklahoma, where the court is under attack for ruling that a Ten Commandments monument must be removed from the Capitol, bills are being considered that would give the governor and legislative leaders more control over the selection of justices. In Georgia, a Republican bill some described as “court-packing,” to increase the number of Supreme Court seats, has passed the General Assembly.
Driving the conflict in Kansas is the recent dominance of conservative Republicans led by Brownback. Many legislators say the courts have overstepped their role by ruling that cuts in school funding violate the state constitution’s guarantee of a basic level of education.
“If you’re going to make political rulings, then you should be politically accountable,” said Sen. Dennis Pyle, a sponsor of the bill to broaden the grounds for impeachment.
The impeachment bill is not likely to clear the Legislature this year, but Brownback is also pushing for an amendment that would give the governor more control over choosing new justices, who are now winnowed through a merit system.
All but one of the seven sitting Kansas justices were appointed by a Democrat, former Gov. Kathleen Sebelius, or by her predecessor, a moderate Republican.
Brownback has condemned the existing system for choosing justices, in which a committee of five lawyers (selected by their peers) and four nonlawyers (appointed by the governor) provide candidates.
In his State of the State address in January, Brownback said the selection of justices “is controlled by a handful of lawyers” as he repeated his call for an amendment to create “a more democratic selection process.”
Chief Justice Lawton Nuss, who was appointed by a moderate Republican in 2002 and became chief justice in 2010, responded by saying: “We believe that our present system that has been in effect for almost 60 years is superior to the other models that are being proposed.”
Referring to the retention elections that justices must face every six years, he said: “I don’t know how much more democratic you can get.”
The state’s conservatives “believe that they should be able to change the court when there is disagreement about decisions,” said Callie Jill Denton, executive director of the Kansas Association for Justice, the trial lawyers’ trade association.
But Sen. Jeff King, chairman of the Judiciary Committee, said, “I think we need to change our judicial selection process, absolutely.”
Charles Geyh, a professor at the Indiana University Maurer School of Law and the author of “Courting Peril: The Political Transformation of the American Judiciary,” warned that increasingly bitter, partisan battles threatened to undermine faith in the courts.
“We need to get past the fiction that judges are umpires that just call balls and strikes,” he said. “Ideology will affect their decisions,” he acknowledged, “but we need to give them some breathing room. They are not hijacking the law.”