by Trey Dellinger
As the nation’s 250th anniversary celebrations fade, it’s easy to think of the fight for freedom as a “done deal” — a project completed two centuries ago. But that’s the wrong way to think about it. There is always a power-hungry elite, contemptuous of the people’s ability to govern themselves. Our 250-year-old revolution is ongoing, and many battles remain to be fought with those who would seize control from the people.
One such battleground has to do with how people choose judges. For example, 14 states use a process called the “Missouri plan,” by which attorneys essentially pick judges. Not the people. Not the average voter. Not even the elected Legislature through advice and consent. Unelected attorneys. One such state is Kansas. But on August 4, Kansas voters could change that.
Currently, ordinary Kansans have no effective say in how their appellate judges and many trial court judges are selected. That’s almost the entire third branch of representative government. For example, nominees for the state Supreme Court are handpicked by a commission made up of five Kansas lawyers and four non-lawyers appointed by the governor. The five lawyers are elected by other Kansas lawyers. The nominating commission selects a slate of three lawyers, then the governor picks one of those three lawyers to be a justice. The lawyers have a 5-4 majority on the commission, which means lawyers, not citizens, control who gets to sit on the state Supreme Court.
Early in their term, justices are subject to a “retention” vote where voters decide whether to keep the incumbent judge. These retention elections don’t give voters a real choice because the sitting justice does not have an opponent. Even if the voters “threw the bum out,” they wouldn’t pick the justice’s replacement. This leads to voter apathy.
Since the current process was established in 1958, no Kansas Supreme Court Justice has ever lost a retention election. The retention election is just a fig leaf to give this insider’s game an appearance of democratic legitimacy.
Last session, the Kansas Legislature approved a proposed constitutional amendment that would give Kansas voters the right to elect their state supreme court justices. Unsurprisingly, Kansas trial lawyers, who currently control the process, oppose the ballot measure. As a group, lawyers lean left politically. Kansas voters, however, lean Republican, with registered Republicans outnumbering registered Democrats by about a 2-to-1 margin.
Republicans hold supermajorities in both chambers of the Legislature. But Democrats have done better recently in governor’s races than in legislative races. Democrats know that if the left-leaning Kansas Bar membership and the governor continue to control the process for picking justices, Democrats can ensure liberals run the state’s Supreme Court too. That’s two out of three branches of government—not too shabby in a state that leans conservative.
That’s why a coalition of leftist groups formed the so-called “Kansas United for Impartial Courts” (KUIC). Their goal is to maintain the status quo, which means continuing to keep out Kansas voters. Their chair and organizational leader, Micah Kubic, is also the Executive Director of the Kansas ACLU. Kubic is joined on the board by Planned Parenthood Great Plains’ Emily Wales and Evan Gates, a former director of logistics for the Peoples Climate Movement. KUIC is staffed by a former Kansas Planned Parenthood Great Plains community organizer, as well as DEI and gender activists.
These left-wing activists don’t want an impartial judiciary. They want Kansas Supreme Court justices who, like them, believe in a “living constitution” that lets them “read between the lines” to invent new “rights” that destroy traditional values. They’re afraid that, if given the chance, Kansas voters will elect judges who want to follow the actual text of the law and the constitution, as opposed to legislating from the bench.
As a voter, you should want to know whether a potential state Supreme Court justice is a conservative Republican or a liberal Democrat. You should also be able to find out if they have wildly different views about religious liberty, abortion, free speech, gun rights, property rights and many other critical issues. Elections are a proven way of bringing about this kind of dialogue and transparency.
Trey Dellinger is a senior legal fellow with AFA Action and chief of staff for former Mississippi Speaker Philip A. Gunn.
Editor's Note: Unelected federal judges are hijacking President Trump's agenda and insulting the will of the people.
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