by Trey Dellinger
As the echoes of the nation’s 250th anniversary recede, many may regard the quest for freedom as a historical relic, completed over two centuries ago. Yet this perspective misses the mark. The drive for self-governance faces relentless challenges as power-hungry elites, skeptical of the people’s capacity to rule themselves, continue to lurk. Our quarter-millennial revolution is far from over, leaving numerous battles to confront those seeking to commandeer control from the populace.
The arena of judicial selection is one such front of contention. In 14 states, an approach known as the “Missouri plan” is deployed, which puts the power of selecting judges largely in the hands of attorneys rather than the electorate. This method sidelines the average voter and even bypasses the elected Legislature’s advisory role. Kansas exemplifies this system, yet, on August 4, Kansans have a potential turning point within their grasp.
Currently, Kansans have little influence over the appointment of their appellate judges and numerous trial court judges, effectively marginalizing their voice in this critical component of governance. The selection process for the state Supreme Court illustrates this issue. Here, nominees are chosen by a commission comprising five Kansas lawyers and four gubernatorial appointees. Notably, the lawyer members, elected by their peers, maintain a 5-4 majority, which places the keys to the state’s highest court firmly in the hands of legal professionals rather than the citizens.
Furthermore, shortly into their term, justices encounter a “retention” election where the public votes on their continued tenure. However, these elections offer little genuine choice, as incumbents face no challengers. Even if voters opt to “throw the bum out,” they lack the power to select a successor. This effectively breeds voter disinterest and 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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