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The law is a justice’s lodestar; not public opinion

Anti-abortion activists are hoping they can ignite a statewide backlash to a Kansas Supreme Court decision earlier this year that recognizes a woman’s right to abortion.

Their goal is threefold: To get a constitutional amendment that bans abortion on the 2020 ballot; to unseat the justices up for retention in 2020 and to change how justices to the Supreme Court are selected.

Events in Iowa likely serve as inspiration.

In 2009, six years before the U.S. Supreme Court made same-sex marriage the law of the land, Iowa Supreme Court Justices said the rights of heterosexual married couples should be extended to those of the same sex.

In the ensuing election, every justice up for retention was given the boot.

The justices’ defeat came solely at the hand of ultra-conservatives who contended the justices did not represent public sentiment.

Groups from across the nation — the American Family Association, the National Organization for Marriage, The Family Leader — said the “activist” justices were imposing their personal values on Iowans — at their own peril.  

But let’s be clear: The growing pressure by special interest groups on justices is the real danger. And those who claim to wave the flag of democracy in the name of such efforts actually imperil an independent judiciary, a cornerstone of our nation.

Judges must use the law as their lodestar, nothing more. Their job is to interpret the law, safe from any individual’s or group’s influence.

Effort to make our courts mirrors of public sentiment compromise more than their impartiality. They jeopardize the rights of minorities and lesser-known, but equally important, issues.

Judges would be less likely to protect minority rights — even though protected by their state constitution — if they feel it would threaten their chances for retention.

 

KANSAS FACES such a future if radical groups are allowed to hold justices hostage. In 2014, a quickly organized Kansans for Justice worked for the defeat of Supreme Court Justices Eric Rosen and Lee Johnson so that then-Gov. Sam Brownback could appoint a more conservative-leaning bench.

Fortunately, voters saw through the ruse and retained the justices for another six years.

After that setback, Brownback pushed to either be given the sole power to appoint justices, with Senate approval, or have justices directly elected to their positions. Both measures failed to gain legislative approval.

But don’t expect such attempts to be a one-time affair.

Today, almost half of states elect their Supreme Court justices. Another six states give their governors, with legislative approval, the power.

Kansas is among the half which uses a merit system to appoint justices to its Supreme Court.

Kansas’s is based on a nine-member nominating commission that interviews candidates, of which it recommends three for the governor’s consideration. Commission members consist of one non-lawyer and one lawyer from each of Kansas’ four congressional districts, in addition to a chairman. The governor has 60 days to make his or her decision.

 

THOUGH STATES that elect their justices tout the races as nonpartisan, that is becoming less the case. Ever since the Citizens United case was passed by the U.S. Supreme Court in 2010, money plays an increasing role in our elections, funding the support of liberal or conservative causes to coalesce around specific candidates.

Some states are blatantly open about mixing politics and justice. In November’s race for a seat on the Louisiana Supreme Court, the oil and gas industry pumped millions into the successful campaign of Will Crain. The coveted positions are for 10 years.

On its 2020 docket, the Louisiana high court is scheduled to hear numerous lawsuits regarding southern Louisiana parishes suing the oil and gas industries for the damage they have done to their coastline in the name of energy exploration. Hopefully, voters will put Mr. Crain on a short leash to ensure the energy giants didn’t buy his support.

 

KANSAS is more immune to such liabilities because of the transparency in how justices are appointed, giving outside interests less chance of having inside influence.

That’s something to celebrate. And keep.

— Susan Lynn

 

The Iola Register

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