Monday, October 6, 2008

Greg Musil, judicial selection, and defending the indefensible

There are a few things in life that are absolute certainties.


And the fact that Johnson County moderates and liberals, when faced with likely defeat in a particular election, will bring up their favorite bogeyman, District Attorney Phill Kline, in an effort to sway the voters towards their point of view.

KTRM tried it in primary race in Senate District 10 between Mary Pilcher Cook and Sue Gamble, when trashy hit pieces were sent out trying to link Pilcher Cook to Kline. That strategy proved embarassingly bad, as Pilcher Cook crushed Gamble 57-43 in the primary.

Now, Greg Musil and "Johnson Countians for Justice" are bringing up Phill Kline again in their effort to defeat the November ballot initiative to elect judges in the 10th Judicial District, which encompasses Johnson County. They have even taken to taking out a billboard on I-35, as noted in this Kansas City Star article: .

The billboard says the following:

“Keep Phill Kline Off Our Court, VOTE NO ON QUESTION 1,” the big red billboard screams on the west side of Interstate 35 just south of Shawnee Mission Parkway.

I know campaigns are full of hyperbole but that's perhaps the most ridiculous ad campaign I've heard in a long time.

Let's assume that Question 1 passes on November 4 and judicial elections are initiatied in Johnson County. There are currently 19 Divisions in Johnson County, meaning there would be 19 county-wide elections for District Judges in Johnson County. These races would be partisan in nature, meaning there would be party primaries and then a general election, as there is for other races.

Phill Kline, in his most recent county-wide primary election, earned 40% of the vote. In his most recent general election, he earned 35% of the vote county wide. Does Greg Musil or anyone else seriously think he would get elected judge, if he were to even run for such a post?

No, of course not.

Actually, this is just the latest in a line of silly arguments Musil and company have been making in opposition to Question 1.

On their website,, they say in big bold letters, "Justice, Not Politics." They want the public to believe that th e current "merit system", where FOURTEEEN PEOPLE (yes, 14) send three names to the governor who MUST select one of the three (or the Chief Justice of the State Supreme Court selects one), is somehow apolitical. This ignores the fact that virtually all of the members of the current Johnson County nominating commission are politically active or have given significant contributions for Governor (who makes the final choice), Attorney General (who prosecutes cases), and other races. How can one claim a system is apolitical when former Attorney General Paul Morrison was on the commission?

Yet despite the fact that elected officials have served on the current precious nominating commission, another argument they make against Question 1 is that in Wichita, where they do elect district judges, that three (yes, just three-- Judge Eric Yost (former State Senator), Judge Anthony Powell (former State Representative), and Judge Jeff Goering (former State Representative))former elected officials currently are judges, and a fourth (Senator Phil Journey) is running -- insinuating that this is a bad thing. Of course, they cite nothing about any of these individuals that is a problem, other than they had "legislative experience". -- not citing why it is bad. Nevermind the fact that all four are well-regarded attorneys. Plus, shouldn't the fact they were LEGISLATORS and thus KNOW THE LAW a good thing? And what is the big concern over the fact that 4 out of the 25 (16%) are former elected officials? Is there anything wrong with these individuals continuing their public service if the voters support them? Should all former elected officials be disqualified? If they were appointed by a precious nominating commission, would that magically make them qualified?

The "Justice Not For Sale" folks also bemoan the fact that, if Question 1 passes, that the judges would have to run campaigns and "gasp" raise money. Yes, Mr. Musil, God forbid these judges actually would have to share their judicial philosophy with the public. God forbid that these judges would have to be "judged" themselves by the public, who they are supposed to represent (Some will claim they represent the law, not the people, ignoring the fact that the law was created by elected legislators who were elected by the people). God forbid they'd actually have to earn support.

Finally, another ridiculous thing the "Justice Not for Sale" folks cite is that (from their website) "only about 15 percent of all Kansas voters voted in the primary elections in 2006. In such a low turnout election, 7.6 percent of all voters could end up choosing who will be your judge if you are injured in an accident, face a divorce or if someone sues you for breach of contract. Because primary voters tend to be more ideological and partisan, the judges they would select would almost certainly also be more ideological and partisan." First of all, they cite 2006, which was the lowest turnout in recent history in Kansas primary elections, not the fall of 2004, when 75% of Johnson Countians turned out. But, even accepting their outlier turnout example, instead of having 15 percent of the people decide who MIGHT BE "ideological or partisan", they'd rather have FOURTEEN PEOPLE decide, most if not all of whom are DEFINITELY idelogical OR partisan (as seen by their political donations and activism).

And they expect the public to buy this?

Of course, anyone can see through the thin screen of deception in thair arguments. Indeed, it is political motivations alone that is behind the opposition to Question 1:

First of all, while bemoaning the fact political conservatives are some of the people driving the support for the initiative, Johnson Countians for Justice is full of liberal-leaning groups and individuals, including the left-wing Mainstream Coalition, well known liberal "Republican" Dick Bond, the liberal leaning Chambers of Commerce, and Greg Musil himself, who is a former City Councilman in Overland Park who got trounced by Phill Kline in the 2000 Congressional Race in the republican Primary (this was pre-Phill is the devil media campaign).

Isn't it funny how much they criticize "politics" yet how many of them are willing to be part of a political campaign about the judges themselves, contributing thousands to defeat an initiative?

Isn't it also ironic how much these people, who so enthusastically support the "retention" system because its supposedly apolitical and doesn't involve campaigns that involve fundraising, are forming a vast political organization and spending thousands upon thousands to defeat Question 1, which is essentially a retention vote on the system as a whole?

Of course, the main reason why they oppose electing judges is that they want to maintain their current closed-loop system of judicial selection which has no checks and balances, no trail of accountability to the public, and no external method of questioning the system, other than legislative action to reform the system or citizen initiative to elect judges.

Let's review -- the current system is this: When there is a vacancy in the Johnson County District Court, a nominating commission of 7 regular people (each appointed by one member of the Board of County Commissioners) and 7 lawyers (elected by fellow lawyers) meet to submit three "nominees" to the governor who MUST pick one of the three. If the Governor doesn't, the State Supreme Court justice picks one. There is NO confirmation by the Senate, NO election. The ONLY check is the "retention" vote when all 19 judges are subjected to a "Yes/No" vote, despite the fact there is little to no information about their judicial philosophy or decisions -- and as such, no one is ever not retained. And, even if one was ousted, the replacement would be submitted to the same system!

Consider these scenarios:

Scenario A. The State of Kansas elects Sam Brownback as Governor, a conservative. A vacancy occurs in the Johnson County District Court. The Johnson County Nominating Commission, composed of seven liberal lawyers and 3/7 liberal "regular people", sends three liberal names to the governor. Governor Brownback refuses to nominate any of the three, citing their liberal philosophy and the fact that all seven members of the Kansas State Supreme Court are currently liberals, and how the court needs balance. As a result, the State Supreme Court Chief Justice selects one. So, even if the Governor is conservative, he/she could not shift the balance of the court, like is seen on the federal bench.

Scenario B. Judge Smith, a political liberal, is defeated narrowly in a rare retention defeat as the result of an organized opposition to his candidacy. Govenor Sebelius claims that Judge Smith was the victim of a political witchhunt. As such, the 10/14 liberal members of the nominating commission select a close associate of Judge Smith, Judge Jones, also a known liberal as one of the three nominees -- and Governor Sebelius chooses him. No confirmation by the Republican Senate and no immediate retention vote. The public's will is thwarted.

Scenario C. Long-time well known and respected lawyer Joe Smith has had a distinguished career and wants to be a judge, so he applies and his name is submitted to the nominating commission. He is clearly the most qualified of any of the applicants. In a closed-door session, it is discovered that Joe Smith has a conservative judicial philosophy. The liberal dominated nominating commission, upon discovering this, fails to submit his name to the conserative Governor Sam Brownback, who they know would likely pick him. The distinguished Joe Smith is denied a judgeship despite enormous qualifications.

All of these scenarios are plausible, if not probable, under the current system. And all are unacceptable. That's why reform is needed.

What's particiuarly silly about the opposition to Question 1 is the political reality that would likely retain most of the 19 District Court judges in Johnson County. The fact is, that if Question 1 passes, and the 19 District Court Judges had to run for election, the likelihood is that most all would be elected. Why? Because all are incumbents, all would have the financial support and endorsement of the bar establishment, and few, if any, have issued rulings that have angered a majority of the public. Also, because the passage of Question 1 would trigger 19 separate county-wide elections for the District Court, it is likely that most of the 19 slots would only have one candidate -- in fact, as they admit on their own website, only 15 of the 85 District court spots up in the general of 2004 were contested. So where is the vast infusion of politics?

(Side note - Johnson Countians for Justice claims that the merit system is better because while only 15 of the 85 election-style judicial slots actually had an election, ALL of their "merit system" slots had an up or down vote, giving the public more of the choice. Okay, fine -- why not have a system where in races where there is just one candidate after the filing deadline, there is a "make seat vacant" option in addition to the single filed candidate, and if the "vacant" option wins, the governor then appoints a replacement for the term? Just an idea to deal with this line or argument.)

Also, even if all 19 spots were contested, despite the over-the-top factually-misleading fear mongering of the Phill Kline ad, it is likely that most of the 19 spots would be filled by moderate Republicans, as Johnson County, on a county-wide level, leans right but only moderately so. But even if, say, 4 of the 19 judges were conservative, why is this bad? Isn't a good portion of Johnson County (Olathe, for instance), conservative and thus shouldn't part of the District Court have judges who have a conservative judicial philosophy? Why is this unreasonable?

One could argue what the BEST reform could be to the current system. Some could argue for system that maintained a commission, but made all 14 people appointed by public officials, rather than the bar association. Some could argue for nominees being sent to the Governor, but that the Governor could override it and pick who he/she choose. Some could even argue for electing the nominating commission members, so they all would be accountable. But no -- Musil and his pals do not suggest any such alternative reforms.


Because any change to the current closed-loop system threatens the exclusive control the liberal bar association, elite business groups, and liberal political groups/indivdiuals have over the Kansas Judicial Branch. The support of the extreme left Mainstream Coalition is evidence enough of this. Of course, in any election system, they would still have SIGNIFICANT IMPACT AND INFLUENCE over who is elected becuase of the power and money they have -- but they aren't satisifed with that -- they want TOTAL control, even if it is not based on the principles our nation and state was founded upon. They can't fathom the camel's nose under the tent. They don't want the light of day shined upon the philosophies of the judges they choose.

Oddly enough, Musil and company will not defend the "merit system" on its merits, because they know it has none. Instead, they will rely on fear-mongering billboards with their favorite bogeyman in big letters. One would think that lawyers would rely upon more sound arguments.

Not when their precious little closed-circuit system is in danger of collapse, huh?