Concerned that some judges on the bench are bad for business, the Kansas Chamber of Commerce and Industry announced Tuesday it will pick apart and make public judges’ voting records, starting with the Kansas Supreme Court.

The chamber’s plan drew quick response from critics concerned that the business group’s aim is to erode the independence of the Kansas judiciary.

The analysis, said chamber CEO and President S. Lewis Ebert, will make clear which justices are good for business and which are not.

Ebert said the analysis would be nonpartisan and “data driven.” The chamber’s motives, he said, are pure. Its only purpose is to inform the public.

But others said they weren’t so sure.

“While the chamber says it’s doing this objectively, it certainly has an interest and an agenda. Its ultimate goal is influence,” said Kansas University law professor Richard Levy. “Look at what’s going on at the federal level. I don’t think that experience cries out for us to move in that direction. We should want to make the process less political rather than more political.”

“When the process turns political,” Levy said, “every time a decision is made, somebody loses and becomes a political enemy or opponent. Once we go down that road, judges can’t make a decision without looking over their shoulder.”

Increasing court attacks

In Kansas, each of the seven supreme court justices is subject to a retention vote every six years, depending on when they were appointed to the bench. But never has a Kansas Supreme Court justice been unseated that way.

Kansas Supreme Court Kansas Chamber of Commerce

When vacancies occur through retirement or death, the court solicits nominees from the state’s legal community and appoints a committee to review the nominees and forward three names to the governor. The governor picks one of the three.

Historically, neither the nomination process nor the recall votes have been the subject of big-money campaigns aimed at swaying the electorate or a governor.

The chamber’s decision to promote one judicial leaning over another comes at a time when the court is increasingly under attack by legislators upset about the recent overturning of the state’s death penalty and a high court order to increase state aid for public schools to avoid having the Kansas school finance law declared unconstitutional.

In addition, there is growing agitation nationally among conservatives upset with court rulings that allowed same-sex marriage and the removal last month of Terri Schiavo’s feeding tube, resulting in the Florida woman’s death.

Ebert insisted the Kansas chamber’s effort would steer clear of these and other hot-button issues.

The Kansas chamber’s only interest, he said, was to make Kansas the best state in the nation for business, a status that requires a judiciary that favors employers’ interests on issues involving worker’s compensation, medical malpractice, product liability and tort reform.

Evaluation institute

Ebert said the justice-by-justice analysis will be conducted by the Washington, D.C.-based Judicial Evaluation Institute for Economic Issues.

The institute’s president and executive director, Neil Coughlan, said the organization has already completed similar analyses in 19 other states.

The institute’s services are provided to the Kansas chamber free of charge, Coughlan said.

According to a 2000 report by the Georgetown Environmental Law and Policy Institute, an Oklahoma group with close ties to Wichita-based Koch Industries launched a “nationwide program to promote the election of state judges sympathetic to business interests in environmental and other cases.”

Coughlan declined to identify the institute’s donors, noting that the U.S. Chamber of Commerce is a major contributor and that the Koch family is not.

Eventually, the institute’s analysis of Kansas Supreme Court justices will be expanded to include court of appeals judges, Coughlan said.

Politics and justice

During this year’s legislative session, the Kansas chamber pushed through pro-business workers’ compensation measures, including one that makes it easier for employers to defend themselves in workers’ comp cases when employees who have been drinking or get hurt on the job are involved in accidents. Chamber officials said the bill was necessary because of a 2002 Kansas Supreme Court decision that limited the admissibility of blood alcohol evidence.

Another chamber victory: The Legislature passed a school finance plan that contained no statewide tax increase.

“The education funding bill proves Kansans can keep priorities in order, working to create jobs while providing more funding for education — all the while not raising taxes,” Ebert said.

But mixing politics and the courts sets a dangerous precedent, said Alan Rupe, the Wichita attorney who filed the lawsuit challenging the state’s school finance formula.

“I think when we put a judge in a position of having to choose between what’s in the constitution and what voters have been led to believe may or may not be in their best interests, we’re headed into some dangerous territory,” Rupe said. “Judges are not legislators and shouldn’t be expected to behave like legislators.”

Rep. Candy Ruff, D-Leavenworth, said she was disappointed in the chamber’s action.

“How is this economic development?,” she asked.

She said the chamber was trying to influence the judiciary similar to its lobbying at the Legislature. Ruff is the ranking Democrat on a House committee that often considers proposals from the chamber.

“The judiciary has to remain that one branch of government that has its decisions not subject to a popular vote,” Ruff said.

‘Herculean task’

Sen. Phillip Journey, R-Haysville, an attorney, said it would be difficult to provide a clear view of how a judge leans given the complexity of many of the cases considered.

“It’s a Herculean task,” to score judges, Journey said.

Betty Vines, president of the Kansas Association of Public Employees, said she opposed the chamber’s study.

“It bothers me when the chamber starts telling us when judges are meeting the criteria we need,” she said. “When you single out one group you are going to get biased information toward that particular group.”

Former state Supreme Court Justice Fred Six of Lawrence, said he had no problem with the chamber attempting to provide information about judges, but he said the review would definitely have a pro-business view.

“The independence of the judiciary is so vital to our system,” Six said.

He said he hoped other public interest entities — such as organized labor and consumer groups — would get involved and provide their review of judicial decisions.

Six serves on an advisory board that is trying to devise a way to inform the public about judicial qualifications when a judge is up for retention election, or in partisan elections.