Abortion opponents heating up Kansas Supreme Court races

? Intense battles over who controls the courts have migrated this year to states where Supreme Court justices have been insulated for decades from the rough-and-tumble of politics, alarming groups that promote judicial independence.

Abortion opponents are trying to remake the Kansas Supreme Court by ousting four of its seven justices. In Iowa, three justices are under attack over a ruling last year legalizing gay marriage. A Colorado group is pushing to unseat three high court members over rulings on tax issues. An Illinois justice could lose his seat because conservative business interests see him as hostile.

None of the justices faces an opponent on the Nov. 2 ballot in their states, only a “yes” or “no” vote on whether each stays on the bench. Illinois has seen high-dollar judicial races before, but Kansas, Iowa and Colorado are in new territory. In Kansas, a campaign against a justice is so novel that campaign finance laws don’t apply — meaning there are no disclosure requirements.

“We are seeing more states become battlegrounds for court wars,” said Bert Brandenburg, executive director of Justice at Stake, a Washington-based nonpartisan group. “It’s going to get nastier, more expensive and rawer, with each cycle.”

As groups like Justice at Stake and the Brennan Center for Justice at New York University’s law school decry a surge of interest-group money in spending on judicial elections in some states, conservatives say they’re frustrated with perceived judicial activism and feel their courts aren’t accountable.

“There’s a lot of concern and unrest in the country,” said Tom Brejcha, president of the Chicago-based Thomas More Society, an anti-abortion law firm, “and people want to force these issues.”

Kansas, Iowa and Colorado are among 13 states in which the governor appoints Supreme Court justices from finalists picked by nominating commissions, with no involvement by legislators. Defenders of those systems say they insulate the courts from politics, and Kansas, Iowa and Colorado haven’t had a Supreme Court justice ousted in a retention election.

In the Sunflower State, the anti-abortion group Kansans for Life is trying to remove the justices, and the effort has inspired a counter-campaign.

Executive Director Mary Kay Culp declined to say how much Kansans for Life expects to spend on its “Fire Beier” campaign or whether it will advertise on television. The group has 205,000 households on its mailing list, however.

The campaign is named for Justice Carol Beier, who wrote opinions in 2006 and 2008 strongly criticizing a former attorney general’s conduct in investigating abortion clinics. The other high court members on the Nov. 2 ballot are Chief Justice Lawton Nuss and Justices Dan Biles and Marla Luckert.

Culp said the campaign reflects a larger frustration with what abortion opponents see as lax regulation of clinics by the state.

“The only thing left was to try to change the Supreme Court, because it’s open to us as citizens,” she said.

The Kansas justices on the ballot declined to be interviewed. But a state commission on judicial performance recommended all four be retained, irking abortion opponents by broadcasting public service announcements pointing voters to its reports.

Meanwhile, U.S. Internal Revenue Service records show that a group, And Justice for All, formed in March and spent more than $56,000 toward “education” on “issues important to the Kansas court system.” Most of the money went to polling and consulting firms often used by Democratic candidates.

The Wichita businessman who founded the group didn’t return telephone messages, but one donor, Dan Lykins, a Topeka attorney prominent in Democratic politics, said he believes the attack on the court needs to be countered to preserve the judiciary’s independence.

“It’s a risky path to go down,” he said. “We’ve always had good judges appointed by governors, both Republicans and Democrats.”

In Kansas, the worst any justice has done is a two-thirds majority voting “yes” for his or her retention. Often, a quarter of the voters at the polls don’t even bother answering the question.

That’s in sharp contrast to the interest in partisan elections in other states. A report in May by the Brennan Center said spending on elections for states’ highest courts was nearly $207 million in the past decade.

In Colorado, a group formed last year, Clear the Bench, wants to oust three of seven justices over rulings interpreting constitutional limits on state and local governments’ taxing authority.

In Iowa, an unsuccessful GOP candidate for governor, Bob Vander Plaats, is leading an effort to remove three of the seven Supreme Court justices over gay marriage. The National Organization for Marriage, based in Washington, recently reported spending more than $235,000 on statewide television ads.

Two other states, Illinois and Florida, are also seeing efforts to remove Supreme Court justices.

Matt Arnold, the Colorado group’s director, said the effort also is motivated by a sense that officials at all levels are “not playing by the rules” and his state’s high court isn’t accountable because of how it’s selected.

Such feelings are common among Republicans, who suspect merit selections result in liberal courts, said Brian Fitzpatrick, a Vanderbilt University law professor who’s a member of the conservative Federalist Society.

“It’s social conservatives who seem most concerned,” he said.