Two justices of the Kansas Supreme Court recently announced their retirements, and well-established constitutional procedures are now underway to fill those vacancies.
In a desperate, preemptive strike anti-abortion activists interjected themselves into the selection process and declared two candidates under consideration ideologically unfit to fill a position on the Kansas Supreme Court.
Kansans should be assured, however, that this political dustup will not derail the constitutionally mandated process. For now, three candidates, including one of the targeted candidates, Chief Judge Evelyn Wilson of the Shawnee County District Court, have been properly screened, found to be qualified, and forwarded to Gov. Laura Kelly who must select one for final appointment to the court.
The unusual, last-minute gambit comes as little surprise as abortion opponents have in recent years had their way with state lawmakers, specifically former Gov. Sam Brownback and Republican legislative majorities, in enacting numerous measures that restrict access to abortion.
However, these activists have tried but failed to bend the Kansas Supreme Court to their will. They have been blocked by the Kansas Constitution, which establishes an independent judiciary and prescribes that “qualifications” not politics should determine who sits on the state’s highest court.
More than 60 years ago Kansas voters overwhelmingly adopted a constitutional amendment designed to reinforce judicial independence and remove partisan political considerations from the selection of justices to the Kansas Supreme Court. That constitutional language provides for a “non-partisan” Supreme Court Nominating Commission to screen candidates and nominate “three persons possessing the qualifications of office” to the governor for consideration and appointment of one of those to the court. Once appointed, each Supreme Court justice periodically stands before voters in a statewide retention election to determine whether the justice should be retained on the court.
This constitutional procedure, often termed “merit selection,” has repeatedly been embraced by Kansas voters. Each of the 25 justices appointed based on qualifications has stood for retention on one or more occasions and been retained by voters. Each of the nine Kansas governors elected in this period — five Republicans and four Democrats — has appointed at least one justice to the court.
These constitutional safeguards stand in the way of anti-abortion activists and their desire to realign the Kansas judiciary more to their political liking. Kansans for Life and its allies have sought to undo these provisions and have mounted repeated attacks on the court. They have advocated abandoning merit selection of justices, conducted postcard campaigns to oust justices in retention elections, cheered lawmakers threatening the court with budget cuts and impeachment, and now have tried to blackball prospective court candidates. These actions have garnered headlines but to date have not altered the court’s independence.
Earlier this year the Kansas Supreme Court ruled that the Bill of Rights in the state constitution guarantees each Kansan “personal autonomy” which includes “the ability to control one’s own body” and allows a woman to determine “whether to continue a pregnancy.” The court’s decision potentially jeopardizes recently enacted abortion restrictions and gives new urgency to anti-abortion interests that seek to control the court.
Kansans should rest assured that for now the selection of new justices for the Supreme Court will proceed steadily on the basis of merit. They should remain vigilant, however, as special interests such as abortion opponents make another push to politicize the court and threaten the independence of the state’s judicial branch.
H. Edward Flentje is emeritus professor at Wichita State University and served with former Kansas Governors Bennett and Hayden.