Editorial: Judicial politics

Neither state nor federal courts should be in the business of responding to public opinion or following anyone’s political agenda.

The U.S. Supreme Court and some state courts in Kansas have been attracting more than the usual amount of attention in the last couple of weeks.

In Kansas, state courts are facing perhaps unprecedented political pressure related to decisions that should be made without any regard to politics. Legislation passed this year set up a situation in which a Shawnee County District Court decision could nullify the state’s entire judicial budget. Both the executive and legislative branches of state government also have made thinly veiled threats to the state’s appellate courts if they order more funding for K-12 schools in Kansas.

The state already has made appointments to the Kansas Court of Appeals more political by eliminating the role of the Supreme Court Nominating Commission in reviewing applicants for those posts. Applying that same system to the Kansas Supreme Court would require a constitutional amendment, but some state officials are eager to pursue that change — especially if they don’t like the school finance ruling.

The U.S. Supreme Court made a number of high-profile rulings at the end of this year’s term. The 5-4 decisions drew a lot of attention and a lot of criticism from those who think the court is playing a legislative role instead of adhering to the Constitution. Others say the court isn’t being sufficiently responsive to public opinion on some of the cases.

What the critics don’t seem to understand is that courts should not — and should never — be in the business of responding to public opinion. The executive and legislative branches at both the state and national level are directly responsible to the public, but the judiciary is intended to be responsible only to the law of the land. It’s not a matter of majority rule.

Interestingly, some of those critics seem to think part of the solution to that problem is to make the courts more political by having more judges elected or forcing them to stand for retention votes. Kansas already requires retention votes for all of its appointed judges. Those elections allow a majority of voters to remove judges for any reason, but unless a judge has displayed gross incompetence or malfeasance, he or she usually is retained. It’s a good system.

However, the moves that some in Kansas and the nation say would make the judiciary more “democratic” actually would make the judiciary more political and even more likely to take on a legislative role of responding to a majority of voters. Certainly, direct election of judges has that impact. To a lesser degree, the same is true of an appointment system, like the one used for the Kansas Court of Appeals, in which judges are appointed by the governor through a closed process and confirmed by like-minded legislators.

Sometimes, judges surprise people. Observers assume that Supreme Court justices appointed by certain presidents or governors will vote a certain way on key issues. When they don’t, critics may say they are being “activist” or taking a legislative role. Actually what they are showing is that, in any given case, they are rising above the political agenda of the person who appointed them, and perhaps the public at large, and making a decision based on the law as they see it.

That’s their job, and the state and nation should applaud that, not try to undermine it by injecting more politics into judicial appointments.