'If You Can Keep It': Should Judges Be Elected?

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0:24Should judges be elected? That's the question Kansas voters are weighing on the ballot this month. A constitutional amendment aims to change how judges are chosen in the state, abandoning the 68-year-old system of appointing judges in favor of the state's voters electing them. Proponents of the change say elections put the choice back in voters' hands, and their arguments aren't new. Republicans in Kansas have long argued for judicial elections, most recently in 2022. That's when voters in Kansas rejected an amendment aimed at restricting abortion access following the Supreme Court's Dobbs decision.

0:59Kansas Attorney General Chris Kobach, a Republican, urged state lawmakers to amend the judicial selection process so the state could, quote, slowly and quietly place anti-abortion judges on the bench. Now, he says judicial selection is about more than abortion rights. If so many areas where the Kansas Supreme Court is unaccountable to the people and has made decisions that can't be squared with the text of the Constitution, there's no way that when the court decides to become political, which they are hyper-political right now, there's no way for the people of Kansas to say, hey, wait a minute, you need to stick to the words of the Constitution here.

1:34More than$12 million has been spent in total campaigning in Kansas, and those against the amendment are outspending those for it by huge margins. Kansas is one of 13 states that uses a merit-based selection process to choose judges. 21 states hold nonpartisan elections for judges, 11 give governors or lawmakers freedom to appoint them, and the remaining four states have a hybrid system. Advocates against the amendment in Kansas say the state is just the first stop in what will become a nationwide effort to push for judicial elections. I'm Jen White. You're listening to the 1A Podcast. Today as part of our weekly series, If You Can Keep It, a closer look at how judges are picked in this country and what it means for the rulings they issue.

2:18We start in Kansas right after this short break.

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3:04Listen today and subscribe at schwab.com slash on investing or wherever you get your podcasts. The midterms are coming and that means the news cycle, which is already intense, is about to get more intense this fall. So this summer is a perfect time to make sure your news diet is calibrated. I'm Leila Faldil. On Up First, we unpack the three biggest stories every morning so you can stay informed and get on with your day in less than 15 minutes. Follow or subscribe to Up First today wherever you get your podcasts. Let's jump in with our first guest. Joining us is Zach Boblett. He's the Statehouse Bureau Chief at Kansas Public Radio.

3:42Zach, welcome. Yeah, thanks for having me. Zach, take us back in time. Now, we mentioned Kansas Republican AG Chris Kobach. He urged lawmakers to issue a referendum on judicial selection. How did this amendment end up on the ballot? Yeah, so this amendment ended up on the ballot through the legislature. They wanted to get this through after the 2022 vote for abortion rights in the state. There was actually a time frame where Kobach, after the electorate decided to have this, you know, continue abortion rights. There was a time frame where he was speaking to supporters of him during the 2022 attorney general's race, and he told them this was the next step in the fight for abortion, for the next step in the abortion fight, rather.

4:36So as this was working its way through the legislature, how was the public responding? There's been a big response throughout the state, a lot of money, as you mentioned, coming into the state. And there's been a lot of signage. You can just see kind of driving through the streets. There's signage throughout discussing the amendment, voting no on the amendment or voting yes on the amendment. The argument for the amendment is, you know, having that populist ability to directly elect your judges. The argument against is that we have a merit-based system. So theoretically, the judges are the best in the business is how the vote no people see this issue.

5:25I want to talk a little bit more about that selection process. But before we do, the Kansas Supreme Court has seven judgeships. How many were appointed by a Democratic governor versus a Republican governor? So Laura Kelly and Kathleen Sebelius, six of the seven, I believe there's an outgoing person who just got swapped out. So currently there's six justices on the court, but it'd be six of the seven once the new justice gets put on the Supreme Court have been appointed by Democratic governors. So that's where the argument that there is a political bias comes from the vote yes, the proponents of the amendment.

6:06Let's bring another voice into the conversation. Leah Littman is a professor at the University of Michigan Law School. She's also the co-host of the Strict Scrutiny podcast. Leah, welcome back. Thanks for having me. So one of the big questions is how electing judges could affect the type of judicial candidate who gets put forward. What do you think? Absolutely. So I don't think we can divorce this particular question that's being put to the Kansas voters from its context. Because in the abstract, of course, electing justices can sometimes be a great thing. But what is going on here is this is an effort by anti-abortion advocates and anti-LGBTQ advocates and anti-democracy advocates to give themselves a better shot at being able to install justices on the Supreme Court who would do their biddings.

6:53Just in the last week, the Kansas Supreme Court also threw out the efforts by Republicans to try to throw out late arriving mail ballots. Earlier, the Kansas Supreme Court had upheld LGBT rights. And as we all know, the Kansas Supreme Court also recognized abortion rights under the state's constitution. And I think the idea here is if you put this outside of the independent nominating commission, if you put this outside of the governor's power to appoint justices, then you are potentially opening the door to big money corporate interests being able to put in hundreds of millions of dollars in order to overwhelm the messaging and campaign for Kansas Supreme Court justices.

7:33and potentially drown out these issues. We saw the millions of dollars that were spent in the Wisconsin Supreme Court race, another critical state Supreme Court, and I think that that is what the anti-abortion advocates want to give themselves a shot at, being able to evade this independent process and having governors who are elected appoint justices so that they can effectively pull one over the people in Kansas. Zach, in regards to the current process of putting judges on the state Supreme Court, there is this commission. It's made up of nine members, including one lawyer. There's also a non-lawyer from each congressional district.

8:07What is this commission weighing before they put forth a candidate to the governor? Just about anything any commission would weigh when it comes to an applicant for a job. They weigh the experience of the person applying. They weigh their judicial decisions, their ethics, their morals. and they even have, they look into their credit history and their bank statements. So it's a very thorough process. It's actually online as well on YouTube. They have a lot of these application interviews online on the Kansas Judicial Court's YouTube system. So it's a very open process to find the justices before they put their three finalists in front of the governor.

8:52Now, we mentioned the more than$12 million that's been spent on campaigning in Kansas around this issue. How common is that type of spending on an amendment like this, especially during a primary election, Zach? I don't believe it's very common. I'll be honest, I don't have too much experience with constitutional amendment here in Kansas, so I wouldn't be the best person to ask about that. We got this from Matthew in Kansas who says, I don't appreciate being called out to vote in primaries. I'm unaffiliated. Why are they trying to make constitutional changes out of the general elections? Why now?

9:27Zach, as someone who's reporting on this issue, what are you hearing from legislators in your state about why now on this issue? They've said that if this does pass through and there are direct elections of justices, there will be primaries in the future that will be voting. so they claim that this is just kind of a normal process that it would be in the primary session. Now, obviously, people who are against the amendment would disagree with that when primaries generally are lower voter turnout, and then you have unaffiliated voters who a lot of times, also known as independent voters, a lot of times may not come out to vote in primary elections, although they are able to vote in this in Kansas, and it's just kind of been a process of trying to make those folks aware that they can vote on this amendment in the primary election.

10:19Well, right now, Supreme Court justices in Kansas cannot accept political contributions. If this amendment passes and judges are elected, how, if at all, would those rules around political spending change, Zach? That would change completely. If you actually look at the statute, it's crossed out. Those statements where justices can't take those donations, that would change completely. And it's not necessarily, hasn't necessarily been decided that there'll be partisan or nonpartisan elections. But we saw last year in Wisconsin, those are technically nonpartisan Supreme Court, state Supreme Court elections.

10:56And there was over$100 million spent in that. Now, I will say Attorney General Chris Kobach fought back against that, that kind of pointing in that argument, because he said that that is an April election. Generally, elections are going to be in November, and there are going to be less spending in those elections. Well, that's Zach Bomblett. He's State House Bureau Chief for Kansas Public Radio. Zach, thanks for that update. We appreciate it. Thank you. And Leah Littman, professor at the University of Michigan Law School, is still with us. Coming up, election spending in judicial races has increased in recent years.

11:32Why are some concerned campaign spending could politicize state courts? That's just ahead.

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13:00Judge Lodoris Hazard Cordell is a retired judge from the Santa Clara County Superior Court in California. She's also the author of Her Honor, My Life on the Bench, What Works, What's Broken, and How to Change It. Judge Cordell, it's great to have you back. I'm glad to be here. We're also hearing from you. Ethan emails, I'm a resident of Alabama, and our Supreme Court justices are elected for six-year terms in partisan elections. While I can see the many issues with this system, I do think placing judicial selection in the hands of the electorate leads to a more democratic society, especially compared to a system where the electorate plays no part in selecting judges.

13:38Leah, you've been following this amendment in Kansas, and as we heard, the measure is on the ballot because of that 2022 vote that rejected an anti-abortion amendment in Kansas. Just zoom out for us a bit. From your perspective, how much of this is about the long-term future of abortion access in Kansas? I think it is very much about the long-term access to abortion in Kansas. As you were suggesting, the impetus for this entire amendment drew out of the anti-abortion movement's loss before the Kansas Supreme Court, their inability to get the justices to effectively read out the constitutional protections for abortion in the Kansas state constitution.

14:16And I think what this evidence is suggesting is the anti-abortion movement was never really just about returning the issue of abortion to the people because, of course, the people of Kansas immediately voted after the Supreme Court overruled Roe v. Wade to retain their state constitutional protections for abortion. But that wasn't enough for the anti-abortion group. Now they want to change the entire set of rules so that they have a better shot at determining who is on the Kansas Supreme Court that will determine whether constitutional rights to abortion are indeed protected under the state constitution.

14:49So I think the anti-democratic aspects of the anti-abortion movement are a huge driver of this particular constitutional amendment issue. But we just heard from that listener there who argues that judicial selection via election puts the process in the hands of the electorate and that there's something very democratic about that, Leah. Your thoughts? I'm sympathetic to that argument in the abstract. I live in Michigan where we also elect our Supreme Court justices. But I don't think that this particular ballot issue can be divorced from its context in Kansas because the Kansas people already voted democratically to retain their protections for abortion rights.

15:31They wanted to keep their constitutional rights. And this is an effort to effectively allow the anti-abortion movement to make that decision without putting it directly to the Kansas people and allowing the Kansas Supreme Court that has been independently selected to enforce those state constitutional rules. I think there are pluses and minuses to any system of judicial election. I think that state judicial elections run the risk of outside dark money, partisanship, and misleading advertisements and politicizing justices instead of allowing them to neutrally, more objectively enforce the law. But of course, there are also downsides to insulating state Supreme Court justices too much from the will of the people.

16:13But because of the particular context of this election, that's my concern. Judge Cordell, I want us to sort of pull this issue or this question about the judicial selection process away from this one issue of abortion access. And more broadly speaking, when you hear from a listener who says, when we select judges via election, that feels more democratic to me. What's your response, especially as someone who served on the bench? It may feel more democratic, but it is in fact not. Judges are not politicians. Politicians make promises to their constituents to do what their constituents want. The only promise that a judge can make is to uphold the law.

16:54A judge's job is to apply the law fairly, even when doing so is unpopular. So when you add the elections in, we are talking about money and we're talking about judges making promises about what they will do once they're on the bench. That's totally inappropriate. And if a judge rules against a major donor, will that donor still fund her next campaign? If she angers a powerful political interest, is she going to face an avalanche of attack ads? And what about those who are aspiring to be judges who can't tap million dollar networks? Elections, I'm absolutely against elections. And I hope that the listeners understand I have credibility on this because I was elected and I was also appointed.

17:39So I've experienced both of these. And we don't want our judges to end up being politicians. To the caller who said, well, we want to have a say in our judges, you do have a say. If it's merit-based and there are commissions that represent the community, represent the various areas, then those processes in the commissions are transparent, that's exactly what you want. In addition, I recommend that judges just have, particularly on the Supreme Court, have a single term, have a single term. So we avoid these retention elections, which are votes to say, should they stay on or not? They are multi-million dollar enterprises, which absolutely should have no place in our judiciary.

18:27You were elected to the Santa Clara Superior Court in 1988. And as you said, you were also appointed to the bench. How did those processes differ? Well, they're very different. The appointment process is, as your earlier speaker said, they're involved in being vetted, looking at everything in my background, filling out 13-page applications, being questioned and interviewed. That was the appointment process, and then the governor deciding to appoint me. On the election process, there's none of that. It is basically getting out and meeting people, nothing wrong with that, but also there's no vetting done.

19:14I mean, so mine was a contested election. There was a debate and that was about it. There was no vetting. Was that a partisan election or nonpartisan? They're nonpartisan, but at the same time, you know, they kind of become partisan because you get labeled by people, well, she's liberal or she's a feminist or he's a conservative. So it's important if you're going to have these elections, you know, to be nonpartisan. But in fact, in reality, they really don't become that. When we zoom out, judicial elections have become expensive endeavors. Wisconsin's 2023 election to decide a swing vote on abortion in the Wisconsin Supreme Court became the most expensive judicial election in U.S.

19:57history. It was$51 million spent. Two years later, an election for another seat on that same court broke that record with$100 million in spending. Leah, is it clear where this money is coming from? Who's shaping the campaigns around these elections? We know some of where the money is coming from, and a lot of it is coming from the ultra-rich who have that kind of money to toss around. Elon Musk, who famously poured hundreds of millions of dollars into the cause of electing Donald Trump, gave a lot of money to try to elect the right-wing candidate in the Wisconsin State Supreme Court election. The billionaire megadonors and Uline founders, Richard and Liz Uline, who primarily live in Illinois, also gave a lot of money via one of their political action committees that was given to the right-wing candidate in the Wisconsin Supreme Court race.

20:48So a lot of the money is coming from these corporate dark money outside state interests because that's who has that kind of money to throw around. Well, we're hearing from you. Paul emails lots of judges are elected here in Alabama. I disagree with it. Nobody has any idea whether any judge is qualified or not, and they're easy to control by special interest groups. There are too many choices on the ballot for voters to decide. It's better to have a legislature and governor appoint judges, and they can be held responsible at the ballot box. Judge Cordell, judicial selection is quite complex. More than half of the states in the country use some form of election to select judges, whether that's partisan or nonpartisan elections, or there's a hybrid of appointed and elected positions.

21:32Why isn't there a standard system for selecting judges at state level nationwide? There isn't a standard standard because the states have their rights to run their governments and their judiciaries as they see fit. Very different from the federal system. The federal system, there's one rule that covers all of the federal judges in the country. So each state sets its own rules. That is the issue here. And there is no one rule that can say every single state has to abolish elections and can only have merit selection. It's up to the individual states and it's up to the voters to look at this issue.

22:15I really appreciate what the Alabama caller, the person who called in said, because if you look at the election ballots on the ballot, there's generally a profile of the candidate for judgeship or for reelection. And who wrote that that description of the candidate? The judge herself did. So there's no in-depth vetting at all when it comes to these elections, which is why merit selection is much more, much more relevant. and it's really ensured to give us people who are absolutely qualified to be on the bench. But I'm curious to hear from both of you the risks you see of party politics influencing judicial decisions in states where judges are appointed and not elected.

23:01One of the criticisms in Kansas of the Republican legislature there is that the majority of the judges sitting on their Supreme Court were appointed by Democratic governors, and they think that gives Democrats or or Democratic issues, more favor on the court. So Leah, your thought about the risks of party politics, even when judges are appointed. There absolutely are risks of party politics when judges are appointed. I do think that the fact that the Kansas Supreme Court has more justices who were selected by Democratic governors in Kansas is a reflection of the fact that statewide elections offices in Kansas sometimes result in Democratic candidates being selected.

23:41And so when those statewide elections result in Democratic governors and Democratic candidates, then of course, those are going to be the governors that are selecting the state Supreme Court justices. I think that the concerns with partisanship influencing appointed justices are most apparent when you're talking about elections that might not actually reflect the will of the people. So at the federal level, for example, the electoral college sometimes results in a president winning the presidency even though they lose the popular vote. And when you're allowing that sort of partisanship, that sort of anti-democratic partisanship to result in the appointment of justices with lifetime tenure, I think that that is more concerning than when you're talking about statewide elections that do more directly track the will of the people.

24:26Judge Cordell, I'd love your thoughts on that same issue. Yeah, it's really important to look at history. And if you look at Kansas, for seven decades, they've had a merit selection system. Before that, in 1958, Kansans amended the state constitution to go from an election-based system to a merit-based. Why did they do it? Because of a scandal. It was called the Triple Play Scandal. And so a chief justice resigned on December 31st, 1956. Three days later, the governor resigned with 11 days left in his tenure. The lieutenant governor took over as governor and as his sole official act appointed the governor to the vacant Supreme Court seat.

25:07This was political insider trading of a judicial seat. And the voters were outraged by this and changed the system that's been in place for seven decades. So when we talk about the appointment process, it's an appointment that doesn't come out of the blue. It comes as a result of vetting by a merit selection commission. And how do people get placed on that commission, Judge Cordell? Well, so the commissions generally are appointed by looking at the governor will have a certain number of seats to appoint. There will be a certain number of lawyers. And again, these commissions vary from state to state.

25:49Like in California, there is a different system. And the result is they are representative of the legal community and from those who are non-legal people, as well as there being some political appointments. So it is a balance. And transparency is what is so important. And as noted in Kansas, you can actually watch the transparent process take place. And that's what should assure voters that we're doing things in a transparent and a democratic fashion. Judge Cordell gave us some great history there on Kansas, Leah. But judicial elections first started in the 19th century in this country. Mississippi was the first state to enshrine electing judges in its constitution in 1832.