I write in response to the recent letter urging yes on the “Vote for Supreme Court justices” amendment. Let’s unpack what the reasoning seems to be in the letter and in some of the supporting follow up responses.
The writer implies a cabal of attorneys are making nefarious back room deals regarding choosing a justice. The Supreme Court Nominating Committee has a lawyer from each congressional district selected by a vote of peers in their district. Do we really think the politics of Dodge City lawyers mirrors the politics of Johnson County? Yet, each politically different congressional district has equal representation on the committee. Doesn’t sound like a conspiracy to me. (Know also that other states, including Missouri, use commissions with lawyer majorities.)
Read what non-lawyer commissioner Frances Graves, whose career is with K-State Research and Extension Community Vitality, reported 7-28-26 in the Kansas Register: “Regardless of who appointed us or how we came to serve, politics simply wasn’t part of our work together…. Our discussions focused on experience, integrity, judicial temperament, legal ability and leadership….Commissioners spent hundreds of volunteer hours reviewing extensive application materials, legal writing samples, public comments before conducting hours of public interviews.” This certainly describes a nonpartisan and extremely thorough vetting process. No mention of millionaire attorneys influencing the process.
Senator Ty Masterson, conservative Republican gubernatorial candidate, is quoted in the letter. Here is another perspective on his agenda. He has made it clear that electing Supreme Court justices is a way to overturn issues already decided democratically by Kansas voters. He especially targets two issues. He targets the right of women to make their own health care choices, an issue voters supported overwhelmingly in 2022, and voter supported legislation funding public education. The Marion County Record quotes Masterson: “If we elect our Supreme Court they won’t force you to spend money on schools.” Funding our children’s education and teacher salaries is important and without our impartial Supreme Court rulings Ty Masterson would have left schools underfunded.
Finally, your decision to vote for or against the amendment must be based on agreeing with one of these three decision categories. First, no justice has ever lost a retention vote so knowledgeable Kansas voters are retaining justices based on the facts of the decisions they have made, not on campaign promises. Therefore the merit-based commission selection process is justified and working. (That’s a definite No Vote on the amendment.) Second, you believe Kansas voters are not knowledgeable, and are just checking the retention box, but, on the other hand the same voters are knowledgeable and well informed enough to choose a Supreme Court justice based on campaign promises and campaign ads supported by political party money, wealthy donors, and probably outside dark money PAC funds. So, this choice is made on what campaigning justices say, not what they have done. Third, you believe, as Senator Masterson does, that an elected justice will serve your own political agenda and is a back door to undermining the democracy of already decided voter issues. The last two options, of course, completely politicize the court and eliminate judicial impartiality. The court would now be in the business of making law based on campaign promises instead of being a check and balance on the legislative and executive branches.
While our current selection system may need tweaked, it is not broken and our Supreme Court is serving its constitutional purpose.
VOTE NO
Randy Nichols
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Well explained. Thank you, Randy. Why change a system which has worked fairly in Kansas for years? Vote NO.
Thank you, Randy; folks if you want to get a peak of what we would look like, just look at the supreme court after McConnell was done. Yes, those are appointed, but by an unneutral cabal. Our nominees are thoroughly vetted by a neutral commission, that is important. thx again.
I’m reading this after the fact, but Randy Nichols is right on the money! Literally and figuratively! This is another vote, done intentionally at primary time, when less people supposedly vote, and truly on the same issue that was voted on in 2022, and with almost the identical outcome! The people of Kansas are not stupid! We want a woman to have the right to control her body and we want the best education for our children, paid for by our tax dollars! STOP WASTING MONEY ON THESE ELECTIONS AND USE IT FOR GOOD!
Thanks to all who voted NO!! One less mountain to climb..
Randy, when you say justices are retained based on their decisions, do you mean decisions like this schizophrenic one, which claims 1) statutes in effect ath the time the Kansas Constitution was ratified DO NOT control the meaning of Section 5 (Kimball) but then 2) In the very next paragraph claim that such statutes do? (In a civil statute, no less, while deciding a criminal case) The voters must be insane if they are approving decisions like this. I don’t think so. I think they want a court that is fundamentally broken to act as their superlegislature with no term limits. How about a court that is plainly lying or incompetent? “The right to have the jury determine issues of fact is in contrast to the determination of issues of law, which has always been the province of the court.” Absolutely false as applied to the general verdict.
State v. Love, 2017:
“Kimball v. Connor, 3 Kan. 414, 432(1866) (“[Section 5] . . . does [not] contemplate that every issue, which, by the laws in force at the adoption of the constitution of the State, was triable by jury . . . should remain irrevocably triable by that tribunal.”). In answering the second question, this court has consistently noted that when the Section 5 jury trial right is implicated, “‘[i]t applies no further than to give the right of such trial upon issues of fact so tried at common law and does not affect the pleading stage of the case.'” (Emphasis added.) Hasty, 146 Kan. at 519. The right to have the jury determine issues of fact is in contrast to the determination of issues of law, which has always been the province of the court. See,e.g., General Laws of the Territory of Kansas,1859, ch. 25, sec. 274 (“That issues of law must be tried by the court …. Issues of fact arising in an action, for the recovery of money,or specific, real or personal property, shall be tried by a jury.”).
But in 1794, a unanimous U.S. Supreme Court (of six justices at that time) held: “…on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision.”
Three of those Justices sat in the U.S. Constitutional Convention. No-one could possibly better know what the Constitution meant than the men who hammered it out. And the Kansas Supreme Court avoids looking at our own history to determine what Section 5 means. They could look at the minutes of our own Constitutional Convention and tell us the truth. They know that convention was consumed by the notion of resisting the federal Fugitive Slave Act by any means possible, including conscientious acquittal. And thaqt means that their decison should have recognized that the jury has the right to judge of the justness of the law. The jury is supposed to be our democartic say-so in the jury branch. Not voters who run to the court for policy preference.
There is no way this court is retained by the quality of their decisions. They do this kind of mental gymnastics repeatedly. We have a result oriented court taht ignores the law whenever it wishes, writing contradictory meaningless fluff. We have a judicial system that is totally captured by the bar, which IS a special interest group with a legal PROPERTY INTEREST in the sorrows of the people.