Sore Losers

The Christian right in Kansas resembles the Royals in the middle of summer — desperate for a win.

In 2006, voters put moderates back in power on the State Board of Education and drummed Phill Kline out of the Attorney General’s Office. Republican Party zealots installed Kline as the Johnson County district attorney, only to watch him lose that job the moment voters got another crack at him.

The courtroom has been as unforgiving as the ballot box. Earlier this year, grand juries in Johnson and Sedgwick counties refused to bring indictments against Planned Parenthood and abortion provider George Tiller, respectively.

So what’s a movement to do when its influence is on the wane, when both chipping at Roe v. Wade and teaching creationism tumble down most Kansans’ lists of priorities?

It fits itself for judges’ robes.

Tim Golba, a Lenexa resident and the former president of Kansans for Life, chairs a committee pushing for the election of judges in Johnson County. The proposition will appear on the ballot in November.

Golba formed
Kansas Judicial Review of Johnson County
in 2006. Ostensibly a good-government effort, its real purpose is to put conservatives on the bench.

The evidence is plain. This group’s Web site provides short bios of the Kansas Supreme Court justices. The only case mentioned by name is a 2005 ruling in which the court said the state’s Romeo and Juliet statute applied to teenagers who engage in same sex intercourse, a decision celebrated by gay-rights advocates.

Kansas Judicial Review of Johnson County’s spending points rightward as well. Campaign-finance records list a $1,800 expenditure for a Phyllis Schlafly event. Conservative pundit and conspiracy theorist Jack Cashill received $200 for media training.

The state chapter of Kansas Judicial Review, based in Andover, also tips its hand. Six of the eight questions on its candidate questionnaire address stances on life issues, gay marriage, pornography and the death penalty.

Yet Golba would have folks believe that the pursuit of judicial elections is mostly an effort to enlighten the citizenry.

“Nobody, nobody knows anything about our judicial system, especially when it comes to our judges,” he tells me.

Golba says the current system of selecting judges in Johnson County — a commission made up of seven lawyers and seven civilians that forwards three names to the governor — keeps people in the dark. “It’s just so secretive,” he says. “There’s just no public input.”

Neither assertion is quite accurate. The nominating commission meets in public. Once appointed, judges face a retention vote every four years.

That said, judge selection in Johnson County hardly represents full-throated democracy.

The nominating commission is an idea borrowed from Missouri, which established a “merit” system for picking judges in 1940. Nominating commissions attempt to reduce the role of politics and the influence of special interests.

Judge selection in Kansas covers the spectrum between elitism and populism. Of the 13 states that use nominating commissions to staff their supreme courts, only Kansas gives lawyers a majority of the seats. At the same time, several counties, including Wyandotte, have opted for judicial elections. Potpourri!

No system is perfect. Contested elections appeal to democratic yearnings, but they also force prospective and incumbent judges to raise money, seek endorsements and participate in other unsavory glad-handing. A candidate aspiring to be a Wyandotte County judge sent a threatening text message to other lawyers reading “Either you are with me or against me!” (The candidate, Reginald Davis, lost in the August primary.)

Contested elections can also put justice in the service of special interests. West Virginia provides a bracing example. There, in 2004, a coal-mining executive, Don Blankenship, spent $1.7 million to defeat a Supreme Court of Appeals justice who tended to sympathize with workers.

The dark side of the merit system is its lack of accountability. Once appointed, judges tend to hold their seats until retirement. According to the Missouri Bar Association, only two Kansas City-area judges have lost retention votes since the 1940s.

Stephen J. Ware, a law professor at the University of Kansas, believes that the Missouri plan, as implemented in Kansas, gives lawyers too much power. Ware has written that the selection of Supreme Court justices resembles a “good ol’ boys club.”

Ware tells me: “When I make that point, I don’t see Kansas lawyers saying ‘Oh, gee, we feel guilty about that. We think it’s inappropriate for us to have so much power.’ I see the bar clinging to its power and fighting tooth and nail to keep every ounce of it.”

Golba’s group proposes to end the merit plan that Johnson County instituted in 1974. Retention elections are shams, Golba says. “It’s just absolutely ridiculous to have people on the ballot, and you don’t know anything about them,” he says.

Defenders of the merit plan point out the dangers of contested elections. At public appearances, Overland Park lawyer Greg Musil, chairman of Johnson Countians for Justice, a group opposing the ballot question, asks grandparents how they’d feel if their daughters were in custody battles and came before judges endorsed by a fathers’ rights group. “It’s a matter of getting an explanation to the voters why judges are different than politicians, and have to be,” he tells me.

Musil is also suspicious of Golba’s pedigree as a conservative activist. He notes that Golba and others talked about what a fine judge Phill Kline would make, immediately after he lost the race for district attorney. “It’s a political agenda driven by Phill Kline’s allies,” he says.

Golba, however, resists the suggestion that his crusade against abortion rights informs his effort to democratize judge selection.

“If you want to tag me ‘far right,’ I can’t stop you from doing that,” he tells me. “But if you’re asking me a question, ‘Is this why we did it?’ — the answer is no.”

I pressed. Couldn’t a reasonable person look at the evidence and conclude that his group is mostly interested in putting gavels in conservative hands?

Golba was finished talking.

“Goodbye!” he exclaimed, and he hung up the phone.

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