Politics makes for strange bedfellows. This primary season, I found myself voting with the ACLU of Kansas to oppose a constitutional amendment allowing for popular election of Supreme Court justices in my home state. In pushing this bill, Kansas Republicans seem to have forgotten a judge’s proper role: to say what the law is, free from popular pressure.
It’s true that Kansas’s method of selecting justices is unique among the states. The state Bar Association controls our nominating commission, with lawyers commanding at least four of nine seats plus the chair. This approach, known as “assisted appointment,” is practiced by 21 states. In these states, a nominating commission creates a list of candidates from which the governor selects a justice. Then, after the justice serves a term, they stand for retention, at which point the public decides whether they should remain on the court.
The makeup of nominating commissions varies; some are “governor-controlled,” where the governor appoints the majority of members and may even decline to take the commission’s advice. Others are “hybrid,” meaning neither the governor nor the state Bar Association controls the commission. Kansas has the only purely “Bar-controlled” commission, but outside this mechanism, it aligns with most states that eschew popular election of judges.
Reasonable minds can differ on the merits of giving members of one profession such influence over the process. It’s true that, in many cases, members of the Bar Association are best qualified to assess the fitness of one of their own for such a sophisticated and highly technical office. At the same time, the Kansas model creates conflicts of interest by letting lawyers pick those who will decide the most important cases they argue in the state.
But Kansas Republicans want the system to change in response to a grievous 2019 Supreme Court decision that enshrined abortion in the state constitution. While sympathetic, the conservative response should not be to uproot institutions and place even more power in the hands of the mercurial public.
The father of conservatism, Edmund Burke, feared such grants of popular power. Burke, writing in the wake of the horrific French Revolution, argued that past generations have “suffrage” too, and we ought to consider why they created the systems they did before changing them on a whim. More importantly, he feared the public’s susceptibility to partisanship and demagogues.
The Founders shared these fears. James Madison, in Federalist No. 55, mused that even “had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” John Adams, writing to his wife Abigail, in one breath both advocated for democracy and observed that “there never was a democracy yet that did not commit suicide.”
The Founders, then, did not entrust every decision to majority rule. They gave the masses the House of Representatives and the Presidency, tempered through the Electoral College. But the Senate is anti-majoritarian by design – it preserves the rights of smaller states by granting each state two Senators, regardless of size. The Constitution did not even mandate the popular election of Senators until the passage of the Seventeenth Amendment in 1913.
The Founders undoubtedly did not entrust the judiciary to the public. That is because judges have the most complex of government roles. Everyone can conceive of passing a law, and we all see law enforcement on a near-daily basis. But interpreting the law?
Saying “what the law is,” to quote Chief Justice Marshall, is far more nebulous. Various schools of interpretation exist, with infinite shades of grey in between. Judges do not issue advisory opinions; they must wait until a case or controversy is brought before them by parties with proper standing and a ripe record.
What’s more, under the doctrine of stare decisis, judicial decisions occupy a liminal space between opinion and law. Courts can overrule themselves, but the criteria for when this is appropriate are esoteric. While some legal scholars advocate overruling any and all precedents that do not reflect the original meaning of the drafters, others extoll the value of predictability and stability in rulings that generally have the effect of law. These are concepts most non-lawyers have never taken the time to understand.
Thus, members of the general public can’t evaluate a candidate’s fitness as a judge and his or her ability to “say what the law is” without being influenced by what they wish the law to be. Moreover, the people do have some say in how the judiciary operates in assisted appointment states. They vote for the governor, who appoints the judges. They may also vote on whether to retain judges.
But casting the judiciary fully into the public realm, as the proposed amendment in Kansas would do, treats judges like legislators. Judges would be incentivized to campaign, promising decisions that, while popular, may not reflect a well-reasoned understanding of “what the law is.”
Conservatives should also fear popular election because the voting power of Americans is being diluted. With birthright citizenship upheld and an ongoing illegal immigration crisis, there are serious concerns about whether the results of popular elections reflect the will of Americans. To give even more power to this ever-shifting body in pursuit of short-term gains will only lead to further erosion of our institutions, and stalwart conservatives had to consider whether this actually aligned with our principles.
Conservatives across the country can learn an important lesson from the amendment fight in Kansas. First, it is a reminder that “conservative” and “Republican” are not synonymous. The GOP can be an effective vehicle for conservative policy. But it is a party, not an ideology. We conservatives are sworn to preserve the vision the Founders had for this nation, including their acute awareness of majoritarian tyranny.
But more importantly, it is a warning against instrumentalism. A ballot measure like this could quite conceivably backfire on conservatives, especially in a state whose population has been shifting leftward in recent decades. We need not be afraid to wield power and implement the policies we know to be true and good. But we should not use any means necessary to do so. If we uproot institutions, starting with the positions of judges and justices, and become populists, we’ll have conserved nothing, and we’ll cease to be conservatives entirely.
The ballot measure ultimately failed, and the highest judges in Kansas are, for now, selected by an attorney-advised commission. The ACLU had its short-term victory, but in the long run, we have maintained a more conservative judiciary structure in the state, insulated from the popular pressures the Founders feared.
Most importantly, we learned a lesson: In a time of shifting party lines and allegiances, issues should be thought through from first principles – always to conserve the tradition we’ve inherited.
