Experts: Judicial elections becoming more politicized

KANSAS CITY, Mo. -- Legal experts are predicting that elections to decide whether to retain judges will continue to become more politicized, both in Kansas and across the country.

This year, Kansas Supreme Court justices Eric Rosen and Lee Johnson kept their seats with about 53 percent of the vote -- well below the usual margins of around 70 percent in most judicial elections. The two judges were criticized because of the court's ruling that two Wichita brothers who committed four murders should be resentenced.

Political battles over judges are expected to intensify because Kansas campaign laws don't cover retention elections for the Supreme Court, which allows out-of-state money to affect the elections, The Kansas City Star reported. Critics fear that will pressure judges to consider political implications, rather than the letter of the law, when making their rulings.

"This spells trouble for fair and impartial courts," said Jim Robinson, a Wichita lawyer who leads the Kansas Bar Association's legislative committee.

Judicial elections are becoming politicized across the country in response to controversial court decisions over same-sex marriage, abortion, school choice, crime and taxes. Campaigns were mounted in Iowa, Alaska, Colorado, Florida and Tennessee to remove state Supreme Court justices.

"Everything suggests they're going to become increasingly more contentious where they look more like real elections," Vanderbilt University law professor Brian Fitzpatrick told the newspaper. "For a long time, they didn't look like elections. They were coronations."

In Kansas, Rosen's and Johnson's popularity eroded from the 70 percent they received in the 2008 election. An Associated Press analysis found that no Kansas justice had received less than 62 percent of the vote in a retention election until last year.

Two more Kansas Supreme Court justices are up for re-election in 2016, including Justice Carol Beier, who was unsuccessfully targeted in 2012 because of her criticism of former state Republican Attorney General Phill Kline's handling of abortion investigations. Also up for election is Chief Justice Lawton Nuss, who's feuded with lawmakers about court funding.

The politicization of elections also could force judges to raise money from special interests that might eventually have issues before the court.

The changes come as the Kansas Supreme Court is already seen by many as being at odds with the conservative-controlled Legislature in recent years.

Conservatives, led by Gov. Sam Brownback, have already tried to lower the judges' mandatory retirement age and to reduce their power. The court's decision directing the Legislature to put hundreds of millions in additional funding into schools particularly angered conservatives, who believe lawmakers, not judges, should make budget decisions.

"There is a lot of concern about how the judiciary operates in this state and the country," Brownback said. "People are getting more and more concerned and vocal."

Some scholars say the method of picking judges in many states, including Kansas, are influenced too much by lawyers with liberal inclinations. About half the states choose their Supreme Court judges using screening committees similar to Kansas.

"They are acting as a superlegislature," said Matt Walter, president of the Republican State Leadership Committee, which helped fund campaigns against the retention of judges in Tennessee. "Instead of testing whether or not something comports with the letter and spirit of the law, they are inserting political ideology."