Judicial retention

As five Kansas Supreme Court justices face retention elections this fall, donations to groups involved in the retentions are not subject to the same disclosure requirements as in other types of elections, The Topeka Capital-Journal's Jonathan Shorman reports. As a result, it is nearly impossible to know who is fundraising the most.

The Kansas Supreme Court has been the center of political fights in that state. Two years ago, conservative legislators tried to change how the justices are selected and more than 50 bills have been introduced since 2013 "that in some way sought to penalize the courts or strip their funds."

The judicial branch of government has become a flashpoint for political disagreement for the 2016 elections, whether it is federal judicial appointments or elections to state courts, The Kansas City Star's Dave Helling writes.

Legal experts say "politicians have started turning virtually every race into a referendum on the courts, threatening public confidence in an independent, apolitical judiciary." For example, Helling reports about how there is a multimillion campaign over the fates of five Kansas Supreme Court justices who ruled in favor of school finance and how there are proposals in Arizona and Washington to change the sizes of both courts in order to exert control over those jurists.
 

The Kansas Supreme Court is under attack by conservatives, including Governor Sam Brownback, for its rulings overturning death penalty verdicts, blocking anti-abortion laws, and ruling in favor of public-school funding, The New York Times' Erik Eckholm reports.

Those efforts include: A bill was passed by the Republican-controlled Senate to authorize the impeachment of justices if the court's opinions allegedly usurp the power of the executive and legislative branches. Conservatives also hope to unseat four justices this fall during retention elections. The governor also is pushing for an amendment "that would give the governor more control over choosing new justices, who are now winnowed through a merit system."

New Mexico Supreme Court Justice Edward Chavez kept his seat on the bench despite his ruling in 2013 clearing the way from same-sex marriage, The New Mexican's Phaedra Haywood reports: "Despite being singled out by the New Mexico Center for Family Policy, NM Watchman Jose Vasquez, For God’s Glory Alone Ministries and political blogger Politix Fireball — all of whom advised voters not to retain Chavez because he had co-authored the landmark decision — Chavez easily received the necessary 57 percent of the vote to keep him on the bench — as did all the statewide judicial officeholders."  In contrast, when the Iowa Supreme Court legalized same-sex marriage five years ago, voters ousted three of the justices when they faced a retention election.

ProPublica's Robert Faturechi reports on how a push by a dark-money group to oust some Kansas judges running for retention has exposed a gap in that state's campaign finance laws. The group Kansans for Justice is encouraging voters to reject the retention of Supreme Court Justices Eric Rosen and Lee Johnson: "Even though the group has all the hallmarks of a political committee – it is soliciting contributions, plans to send mailers, and has an explicit electoral goal – it's not required to report anything about its leadership, donors or spending," ProPublica reports. Why? Supreme Court justices are not included in Kansas' legal definition of "state officers," so groups trying to influence races involving the justices don't have to make those sort of disclosures, ProPublica further reports.

Three justices on the Tennessee Supreme Court were retained last week during a heated judicial retention race, the Memphis Daily News reports. But while all three justices were retained, another clash is looming over the court's decision-making and "an effort by the Republican supermajorities in the Tennessee Legislature to exert political control over the court." In November, voters are being asked to amend the state constitution to require legislative approval of Supreme Court appointments made by the governor.

Lt. Gov. Ron Ramsey spearheaded a campaign against the retention of the three justices, the Daily News also reports.

Meanwhile, the Washington Post opines that the judicial retention races in Tennessee show that politics need to be kept out of the process for selecting judges: "The application of due process and the maintenance of Americans’ civil rights should be more isolated from the pressures of majoritarian elections."

As Tennesseans go to the polls today to vote on whether to keep three Supreme Court justices on the court, The Washington Post reports that almost a million dollars have been spent on ad campaigns in the judicial retention race. For example, a political action committee set up by the Republican lieutenant governor has contributed $425,000 to seek to defeat the retention of three Democratic justices. The justices raised $1 million themselves.

The Philadelphia Inquirer editorial board once called for the Chief Justice of the Pennsylvania Supreme Court to resign because a lawyer on the Philadelphia family court project was revealed to have a conflict of interest by becoming a co-developer. Now the editorial board has endorsed Pennsylvania Chief Justice Ronald D. Castille for retention even though he can only serve one more year until forced to retire because of his age. The board wrote: "Granted, in the kids-for-cash case and others, the court's reforms have come slowly and on the heels of probes by the press, public-interest groups, and authorities. But combined with a tougher stance on judicial discipline, such substantive reforms constitute a powerful argument for RON CASTILLE's continued service, which is subject to a retention vote on Tuesday. The chief justice might not qualify as a reformer in every state, but in Pennsylvania, he does."

Pennsylvania Chief Justice Ronald D. Castille will only be able to serve one more year if retained by Pennsylvania voters next month. Castille, a Republican, argued continuity on the high court will benefit Pennsylvania during a “'critical period as it recovers from the loss of one justice to a criminal prosecution and with another justice currently the subject of a federal criminal investigation,”' Castille said in prepared remarks provided to the Pittsburgh Tribune-Review. Joan Orie Melvin is the justice who was removed and Justice Seamus P. McCaffery is the justice who allegedly is under investigation.

Justice Max Baer, a Democrat, also is up for retention and could only serve four more years.