Over the past two years ultra-conservatives have seen a slate of victories in Kansas, long a bastion of political conservatism. Republican Gov. Sam Brownback instituted the most aggressive income tax cuts in state history, leading to extreme budget shortfalls; he cut public education funding so severely that the Kansas Supreme Court had to interfere; and he removed nearly 45 percent of poor families from state welfare.
Less noticed was Brownback’s move to change the way judges are selected for the state court of appeals—an action that had the full backing of the leading anti-choice group in the state.
“We have a pro-life house and a pro-life senate and a pro-life governor,” Mary Kay Culp, the executive director of Kansans for Life, told RH Reality Check. But, she said, there’s a problem. “We pass pro-life legislation—and we get sued. The next frontier is the courts.”
Stung by the wave of state court cases consolidating marriage equality across the country, conservative groups in many states are now focusing on judicial elections to ensure the array of laws they’ve passed are upheld when challenged in state courts.
The result is that judicial selection—once a relatively obscure topic—has emerged as the focus of a new conservative strategy to reshape the way people become judges at the local level, according to experts who monitor judicial fairness.
“We’re seeing more interest in merit selection in a number of states, especially as high spending and political pressure become a bigger issue in contested judicial elections,” said Laurie Kinney, director of communications and public education at the national nonpartisan group Justice at Stake. “Special interest groups of many stripes have known for years now that judicial elections can provide an opening for political influence and spending that they believe will advance their agendas.”
While RH Reality Check did not find large donations from anti-choice groups to judges in the campaign finance records we examined, our reporting exposed a more profound strategy at work: an effort to cement conservative policy by changing the rules of the game.
Currently, 22 states have contested elections for judges, while 16 have some type of merit selection or governor-appointed system, according to Justice at Stake. Merit systems are intended to insulate the judicial selection process from political and special interest groups. The systems take different forms; a popular iteration establishes a non-partisan commission that accepts applications for judicial posts, and recommends three candidates to the state governor.
Recognizing the potential to influence judicial elections in the era of unlimited campaign contributions and “shadow money,” conservatives in multiple states have begun agitating to switch from merit-based appointment systems to open elections for judges. These groups are also active in opposing efforts to move toward merit-based systems.
Since the U.S. Supreme Court’s decision in Citizens United, which lifted caps on campaign contributions, spending in state court races has skyrocketed. Total spending in 2011-2012 high court state races reached $56.4 million, up from just $31.7 million in 2001, with special interest groups and political parties spending 43 percent of that total, according to a joint report published in October 2013 by the Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics.
The New York Times recently published a story about the heated judicial election in North Carolina, where national groups like the Republican State Leadership Committee poured money into the state supreme court race as part of an effort to put more conservative judges on the bench nationwide. And as Dahlia Lithwick noted in Slate, “knocking off a state Supreme Court justice is one of the cheapest political endeavors going.”
But instead of knocking off particular judges, anti-choice groups seem to be mobilizing to change the entire system of judicial selection. Once they’ve successfully implemented contested elections or gubernatorial appointment, they can then fund judges and governors who will push a conservative agenda.
That’s why Kansans for Life supported the state legislature in 2013 when they moved to swap the court of appeals merit selection committee for a system in which the governor selects judges, which the senate then confirms. The bill, which became effective July 1, 2013, allows Gov. Brownback to hand-select justices, without making the application pool, interview process, or selection criteria public. The only oversight is that the Republican-controlled senate must confirm the nominee.
Now, Kansans for Life has its eyes set on the state supreme court.
Unlike the lower state courts, where the process for selecting judges could be changed with a simple majority vote, Kansas’s state constitution specifies the way that judges are selected for its highest court. Changing that system requires a constitutional amendment.
The state senate passed such a constitutional amendment—which would eradicate the merit selection nominating commission for the Supreme Court—in January 2013, but there was no vote in the house. The legislative session is now over.
Ryan Wright, the executive director of Kansans for Fair Courts, is wary of the push by Kansans for Life to change the constitutionally mandated selection process.
“Take the actual issue of abortion out of it; anytime you have a special interest group that is championing and cheering the [judicial selection] process, I think that should give everybody pause. Wait a second—what have they been promised? What have they been told privately? And why are they so excited about this?”
In the past three years, state legislatures in 11 states, including Montana, Tennessee (where merit selection will be on the general ballot in November), and Arkansas have attempted to pass merit selection bills in response to growing concerns about the politicization of state judiciaries, RH Reality Check’s research shows.
But legislators in some states have found those initiatives opposed by anti-choice groups.
Early this June, Pennsylvania state Rep. Bryan Cutler (R-Peach Bottom) received an e-mail from the Pennsylvania Pro-Life Federation urging him to vote against HB 1848, a merit selection bill.
“This will be a scorecard vote for the Pennsylvania Pro-Life Federation, which represents more than 40 pro-life organizations and tens of thousands of members in Pennsylvania,” the email read. “A ‘yes’ vote will be considered a pro-abortion vote.”
As chief sponsor of the bill, Rep. Cutler was aware of the intense politics involved in selecting judges.
HB 1848 did not appear to be a “pro-abortion,” or even a particularly charged, bill. It proposed adding an amendment to the state constitution so that Pennsylvania’s statewide appellate judges would no longer be selected by partisan elections, but instead by a citizen nominating commission, gubernatorial appointment, and senate confirmation. Periodic retention elections—where voters simply vote “yes” or “no” to keep an incumbent—would ensure that extraordinarily unpopular judges couldn’t stay on the bench.
Rep. Cutler, who is also the chairman of the Pennsylvania House Pro-Life Caucus, was unswayed by the Pennsylvania Pro-Life Federation’s email.
“I respectfully disagree with some of the issues they raise,” he told RH Reality Check in an interview. Rep. Cutler introduced a bill to prohibit abortion coverage in health insurance exchanges, and he would like to see a law in Pennsylvania (similar to the Wendy Davis-filibustered HB 2 in Texas) requiring abortion practitioners to have admitting privileges in nearby hospitals. Even so, he doesn’t think “pro-life” groups should be able to choose Pennsylvania’s judges.
“I personally have concerns when judges have to go out and enter the political process in the way of traditional candidates. I’ve always thought that raised a lot of red flags, when they sit on cases at a later time,” he said. “From my perspective, this is not a pro-life or a pro-choice issue. It is really an issue around the integrity of the judiciary.”
Due in part to the Pennsylvania Pro-Life Federation’s email, the bill was never debated in the house. Because legislators are proposing a constitutional amendment, they will need to vote on the bill in two consecutive sessions before putting the question to the voters. Since the bill failed in this legislative session, it can’t appear on the general ballot until at least 2017.
In other states, merit selection of state judges appears to be a sleeper issue.
Minnesota hasn’t faced the same high-level spending on judicial elections that other states have, which means the push for reform has been less urgent. Still, the legislature came close last year to passing a bill that would present a merit selection constitutional amendment to voters in November.
The state’s main anti-choice group—Minnesota Citizens Concerned for Life (MCCL)—says on its website that it opposes merit selection because it believes citizens should be able to vote for specific judges, and because retention elections are equally politicized as open elections.
The group declined to comment for this story, but Sarah Walker, president of Minnesota’s Coalition for Impartial Justice, attributes the bill’s failure to strong opposition from MCCL.
“There was some fear about this becoming a campaign issue,” Walker said.
For the most part, MCCL, like its anti-choice counterparts around the country, did not launch active opposition to the merit selection bill until it was time for a hearing, Walker said. Then they sent last-minute letters to legislators promising to “score the issue”—present it to voters as an anti-abortion vote in election season voting guides—just as the Pennsylvania Pro-Life Federation did.
“Regardless of what side of issues you are on, I think that everyone should be able to agree that we want our judiciary to be accountable to the rule of law and the Constitution,” said Walker. “We don’t want anyone making campaign promises.”