Kris Kobach says the abortion issue is not over, and I believe him. If Kobach is elected as our next Kansas attorney general, he wants to see our state supreme court filled with anti-abortion justices — justices who would rule that a woman who gets pregnant has no right to make decisions about her reproductive future.
The former secretary of state unveiled his strategy last week: Kobach will push the Republican majority in the Legislature to propose another constitutional amendment, asking voters whether our Kansas Supreme Court justices should be selected by popular election. The sole purpose, according to Kobach himself, is to clear a path to “slowly and quietly” place anti-abortion judges on the state’s highest court, with the ultimate goal of overturning the Kansas Supreme Court’s 2019 Hodes decision — in which the court held that our state constitution includes the right to bodily autonomy.
Foremost, selecting our Kansas Supreme Court Justices by popular election is a horrible idea, and Kobach is, at best, disingenuous about how common that method is among other states.
According to Ballotpedia, seven states elect their supreme court justices in partisan elections, and 13 states hold nonpartisan elections — for a total of 20. I am no math whiz, but that’s certainly not a majority of states. The remaining 30 use an array of different methods, including retention elections.
And there’s a good reason why most states don’t elect their state supreme court justices by popular vote.
In Kansas, our state supreme court justices are selected based on merit. When a judge vacancy occurs, those who want to apply for the position must submit an exhaustive application with detailed information about the applicant’s background and legal qualifications. Then a committee — made up of four nonlawyers and five lawyers — investigates the applicants, verifying the truthfulness and accuracy of the application contents. Based on the committee’s investigation and determination as to who is most qualified, the committee selects three applicants.
At that point, the Kansas Bureau of Investigation steps in to do a thorough background check on each of the final three applicants. If applicants pass the KBI background check, the committee sends those final three names to the governor, who appoints the justice from those three. Thereafter, state supreme court justices face periodic retention elections (the first general election after being appointed and every six years thereafter).
This merit-based selection of our state supreme court justices is not perfect, but it’s pretty darn good. I want my state supreme court justices thoroughly vetted to ensure they are intellectually and academically qualified to be a justice on our highest court. Popularly electing our state supreme court justices would eliminate that vetting process and further politicize state courts.
Think about it. If we select our state supreme court judges by popular election, that means just about anyone can run to be a state supreme justice. Know that anti-abortion groups will generously fund the campaigns of any judicial candidate who would overturn Hodes. Judicial candidates who would end access to abortion care in Kansas would likely amass war chests from anti-abortion groups, greatly increasing their chances of becoming Kansas Supreme Court Justices.
Any plan to pack our state supreme court would not be good for Kansas and would result in more anti-abortion judges on our state supreme court. That’s the plan we’re hearing from high-profile politicians. Be aware, and don’t be taken off guard.
About the author: Castle is a professor at the University of Kansas, where she teaches at the law and business schools. Amii also teaches constitutional law in KU’s political science department. Before teaching, Amii practiced law in downtown Kansas City for two decades.
