When it comes to judicial selection in Kansas, voters have the right to make the selection

On Aug. 4, Kansas voters will decide whether to approve a proposed constitutional amendment that would return the authority to select Kansas Supreme Court justices to the people, rather than leaving the decision in the hands of a nominating commission composed of establishment lawyers, selected exclusively by their fellow members of the bar, and community activists chosen by the governor.

The people had this power for the first 100 years of the State’s existence until they were effectively disenfranchised.

Opponents argue that the current system, in which the governor chooses one of the nominees from the commission, insulates the court from politics and enables the justices to discharge their duties while remaining above the political fray. But this claim doesn’t stand up to scrutiny.

One need only review the opinions of some of the liberal justices in League of Women Voters of Kansas v. Schwab, and the bizarre behavior of Justice Dan Biles in that case, to understand the need for this amendment, which would not only help restore transparency on the workings of the court, but restore the representational rights of Kansas citizens.

The current process gives far too much influence to a small group of elite (almost invariably liberal) insiders and far too little voice to the citizens whose lives are directly affected by the court’s decisions. Indeed, it is ironic that many opponents of the amendment, who are usually strong defenders of the right to vote, apparently believe the electorate is too stupid to be entrusted with voting on this issue. Southern segregationists once made the same claim about black Americans.

Public confidence in the judiciary depends on way more than judges reaching results that the public likes. It depends on the public believing that cases are decided by impartial jurists who adhere to the same ethical standards, or higher, they expect of everyone else. When legitimate questions arise concerning a judge’s participation in a case, transparency is not optional. It is essential.

That principle came sharply into focus during the Court’s handling of League of Women Voters, a high-profile lawsuit preposterously claiming that Kansas’s signature verification for mail-in ballots violated the Kansas Constitution. The challengers claimed this commonsense safeguard imposed an unconstitutional “burden” on voters. The purpose of this requirement, a standard security election practice in virtually every state, is obvious: It is one of the only ways to verify that the person who cast the ballot is actually the registered voter.

On the underlying constitutional question, the court split 4-3 against the challengers, but three dissenting justices, Biles, Eric Rosen, and Melissa Standridge, all appointed by Democratic governors, bought this preposterous argument and took the position that the highest possible legal standard of review, strict scrutiny, should apply to the signature verification requirement, which, if so, would make it virtually impossible for any state legislature to implement the most basic security measures like voter ID or signature verification.

Although much of the public attention has centered on the Court’s decision regarding Kansas election law, another aspect received comparatively little scrutiny: Justice Biles’s bizarre recusal shenanigans.

In this Tuesday, Jan. 15, 2019 photo, Kansas Gov. Laura Kelly answers questions about her executive order to ban anti-LGBTQ discrimination in state hiring and employment decisions during a news conference at the Statehouse in Topeka, Kansas. Kelly's administration will allow transgender people to change their birth certificates as part of a settlement to end a federal lawsuit. | (AP Photo/John Hanna)

" data-large-file="https://www.washingtonexaminer.com/wp-content/uploads/2023/12/ap-19175815452209-scaled-e1784056749760.jpg?w=696" src="https://www.washingtonexaminer.com/wp-content/uploads/2023/12/ap-19175815452209-scaled.jpg?w=696" alt="In this Tuesday, Jan. 15, 2019 photo, Kansas Gov. Laura Kelly answers questions about her executive order to ban anti-LGBTQ discrimination in state hiring and employment decisions during a news conference at the Statehouse in Topeka, Kansas. Kelly's administration will allow transgender people to change their birth certificates as part of a settlement to end a federal lawsuit. " class="wp-image-2498563">In this Tuesday, Jan. 15, 2019 photo, Kansas Gov. Laura Kelly answers questions about her executive order to ban anti-LGBTQ discrimination in state hiring and employment decisions during a news conference at the Statehouse in Topeka, Kansas. Kelly’s administration will allow transgender people to change their birth certificates as part of a settlement to end a federal lawsuit. | (AP Photo/John Hanna)

In October 2021, Biles announced he would recuse himself from the case without saying why. For two and a half years, the Court’s orders reflected that recusal, through the first oral argument in February 2023, and even through an interim opinion the Court issued in late 2023. Then, on the eve of a third oral argument in February 2024, Biles, the intellectual leader of the liberal wing, abruptly “rescinded” the recusal with, once again, no explanation offered, either by him or by the court.

Then-Solicitor General Anthony Powell, himself a former Kansas Court of Appeals judge and now a federal judge, sought an explanation for the recusal rescission in a motion filed with the Court. Biles’s re-involvement in the case without offering any explanation as to how the conflict of interest or prior impediment that prompted his recusal in the first place had been resolved was, according to Powell (and I agree), “improper, has the potential to compromise the public’s confidence in the integrity and impartiality of the Court, and creates at least an appearance of impropriety.”

Remarkably, the League of Women Voters supported Biles’s refusal to disclose any information, raising serious questions about what the League was trying to hide. The state pointed out in its reply brief that the League’s opposition to disclosure amplified “the appearance of impropriety and feeds the public’s skepticism of the integrity of government institutions.”

When the Kansas Supreme Court ultimately issued its opinion on May 31, 2024, Biles issued a scathing dissent excoriating the majority and saying the state has no right to use signature verification, one of the only ways that election officials can verify that the person who sent in the ballot is actually the voter.

Worse still, Biles glibly rebuffed demands for an explanation as to his reinvolvement in the case. To be clear, a judge who recuses himself from a matter ordinarily owes no explanation since the recusal eliminates any concern over the fairness of the proceedings. But when that judge later suddenly resumes participation, an explanation is essential. Otherwise, no one knows whether the original reason for the recusal truly ceased to exist. That unanswered question strikes at the heart of the judiciary’s obligation to promote public confidence in its integrity and impartiality.

SUPREME COURT MUST REIGN IN DC COURT OF APPEALS

After Gov. Laura Kelly (D-KS) makes her next pick, six of the seven justices on the Kansas Supreme Court will have been hand-picked by Democratic governors, creating a solid liberal majority that will no doubt reliably side with the national network of progressive lawyers who have targeted basic election integrity measures like voter ID across the country.

Defenders of the current insider system claim it protects judicial independence, but what it actually does is ensure no accountability to voters, while the Biles episode reflects a court that answers to no one else, either. That is not democracy, and the people of Kansas should not be disenfranchised by a judicial selection commission filled with insiders. They should be able to make their own decision on who will be the final voice on how to interpret the Kansas Constitution and the laws that have been passed by the representatives they chose to represent them in the state legislature.

Hans von Spakovsky is a Senior Legal Fellow in the Edwin Meese III Institute for the Rule of Law at American Advancing Freedom and a former Commissioner on the Federal Election Commission.