Kansas voters this year came close to doing something they never have before: booting a state Supreme Court justice off the bench. Justices Eric Rosen and Lee Johnson ultimately kept their jobs in an unusually high-profile retention election, the kind that ordinarily tends to draw scant attention at the bottom of the ballot. Yet judges usually win elections deciding whether they should remain on the bench — and by margins often ranging upward of 70 percent. This year, Rosen and Johnson only received 53 percent of the vote, the least support for a Kansas Supreme Court justice in a retention election. The election marked a new era in Kansas where judicial retention elections could become high-stakes political battles, similar to what’s already happening across the country — and where millions are poured into judicial races.
“There will be more of these,” predicted Overland Park lawyer Greg Musil. “There’s still an agenda out there that perceives that the Supreme Court and the appellate courts of Kansas are way too liberal to be trusted.”
Political battles over the courts will likely intensify in Kansas because state campaign finance laws don’t cover retention elections for the Supreme Court, clearing the way for more “dark” money to filter into the state.
Some fear the loophole in the campaign finance law potentially puts even more pressure on justices to succumb to public opinion, perhaps tempting them to bend jurisprudence to appease an often angry electorate. “This spells trouble for fair and impartial courts,” said Jim Robinson, a Wichita lawyer who leads the Kansas Bar Association’s legislative committee.