Wa don't need no stinking democracy!

September 25, 2022 7:47 AM

Kobach lays out plan to remove abortion rights in Kansas after failed amendment. (Archive.ph) The change, Kobach said, would clear a path for the state to “slowly and quietly” place anti-abortion judges on the state’s high court with the ultimate goal of overturning the Kansas Supreme Court’s 2019 Hodes decision that found the state constitution includes the right to an abortion. Kobach blamed the August defeat partly on the wording of the Republican-crafted Value Them Both amendment, saying it confused voters and allowed the Vote No campaign to “muddy the waters.”
posted by geoff. (42 comments total)

The change Kobach is proposing is allowing Kansas State Supreme Court justices to be elected rather than appointed. Presumably he thinks anti-abortion folks will be better at manipulating judgeship elections than the clear, direct vote on abortion rights themselves.

Voting vs. appointing judges is one of those structural questions I've never really understood. Voting seems democratic on the face of it, but what does it mean to elect non-partisan competent judges in the current political environment?

Kobach has a long history of anti-democratic action and political fuckery. He's the one Trump put in charge of his 2017 fake "Commission on Election Integrity", their efforts back then to suppress the vote. Kobach did a bunch of sleazy things to cast doubt on votes and try to get voters stricken from the voting roles but mostly the other states resisted it. That failure set the table for the rather more direct attack on voting in 2020.
posted by Nelson at 7:55 AM on September 25, 2022 [21 favorites]

Kansas is traditionally conservative and judicial elections will likely rely on non-abortion wedge issues that will motivate older, conservative voters. So electing judges based on whatever conservative media is pushing will likely not see turnout that was seen during the abortion issue. In fact I bet judges may not even mention abortion.

How this differs from appointments I don't quite understand except maybe appointments have more informed electorates (?) that will see through this political game. Unfortunately local news in KC has all been gutted by hedge funds and you don't see passionate beat reporters going after this issue daily, and I say that with all due respect to the two authors of the article.

You'll see this a couple times and then nothing but Chiefs news.
posted by geoff. at 8:06 AM on September 25, 2022 [6 favorites]

As for election v. appointments of judges, the poly-sci-informed good-government position is "we have too many elected positions in America and judges are the prime example." Though that's in more normal times when you don't have one of the two major parties dead-set on subverting government until they achieve permanent minority rule.
posted by Aardvark Cheeselog at 8:20 AM on September 25, 2022 [13 favorites]

it's only fair to point out that many states, including mine, have elected judges - it's kind of hard to argue against it without all those states being told they should change to appointed judges - it's also hard to argue against it without saying that the people shouldn't be trusted to make decisions like that, or on many other things
posted by pyramid termite at 8:29 AM on September 25, 2022 [1 favorite]

My naive understanding against elected judges is that at least in this case it is used to subvert election results. This might be a major exception to the rule. I guess appointed judges could do the same also but they seem to not have to (at least in this particular case) be politician and a judge.
posted by geoff. at 8:36 AM on September 25, 2022 [2 favorites]

Having successfully co-opted the federal judiciary, they can take on each state's judiciary, too.
posted by rmd1023 at 8:37 AM on September 25, 2022 [5 favorites]

it's kind of hard to argue against it without all those states being told they should change to appointed judges

Is it? Politicians should feel indebted and accountable to the people who get them elected. (Ideally this would be their voters not donors, but w.e.). You don't and should need a specific set of skills, qualifications, or expertise to be a legislator. Sure, charisma and stuff is very helpful, but not required (see Ted Cruz).

Judges should be professionals that make rulings to create clarity and apply laws in everyday and novel situations. You shouldn't be a judge unless you have some legal expertise. If politicians don't like the way a judge is ruling then, good news! They can change the laws.
posted by Garm at 8:46 AM on September 25, 2022 [9 favorites]

I feel like this is a stunt designed to juice his Attorney General campaign, but, like, the primary is over, and the abortion amendment lost its election by 18 points.

Could someone who knows more about campaigns, especially AG campaigns in KS, tell me what he's hoping to accomplish here?
posted by box at 8:54 AM on September 25, 2022 [1 favorite]

I think he's explaining his plan to strip women of reproductive rights. I've got no idea what his political strategy is in the moment but I assume he's entirely sincere in his goal to hijack the judiciary to overturn a clear referendum from the people of Kansas.
posted by Nelson at 9:02 AM on September 25, 2022 [34 favorites]

We don't care what the voters want.
Fuck these assholes. November is approaching. Please do everything you can to defeat these fuckers. I'm off to have a shower before I go volunteer for the Dems. My state leg. candidate is awesome and his opponent is an Extreme Christian Right lying piece of work. Maine's governor is the Queen of Common Sense and Getting Shit Done, who must be reelected.
posted by theora55 at 9:08 AM on September 25, 2022 [22 favorites]

Could someone who knows more about campaigns, especially AG campaigns in KS, tell me what he's hoping to accomplish here?

Nelson is mostly right, but also, Kobach and people like him genuinely believe that either most people are anti-abortion or that enough people are sufficiently pro-forced-birth that any Republican can win if they turn an election into an abortion referendum. You can see it in his claim that the actual abortion referendum was confusing, or in other claims that since it wasn't on the November ballot, it suffered from the anti-abortion voters not knowing it was even up for a vote.

The Anti-Choice Enthusiasm Gap has been an article of faith in American politics for decades. The referendum was a bigger shock to the political/polling/consultant ecosystem than Trump's victory.
posted by Etrigan at 9:28 AM on September 25, 2022 [12 favorites]

The irony is the referendum was confusing on purpose by the GOP. I can see this going through and abortion restrictions eventually making their way in and people will shrug. Another tactic is because Kansas is literally one of the few states with strict laws allowing abortion they're using "sanctuary state" language which is largely true in so much that a large percentage of abortions are from out of state, which I obviously think is a good thing but it is happening.
posted by geoff. at 9:40 AM on September 25, 2022 [2 favorites]

Minnesota has elected judges. There's a pattern of judges retiring in the middle of their term, a replacement gets appointed, then in the next election that appointed judge gets re-elected as the incumbent.

The geometry of the ballot means that judicial races get pushed to the back of the piece of paper. We get friendly reminders at the polls like "don't forget to turn over your ballot". A lot of people skip the races for judge entirely.

Many persons who challenge seated judges tend to be extremist whackadoodles, or just plain weird in general. Not all are, but many are. You might be presented with a whole list of obscure races to select candidates on, and with no party designation on the candidates in those races, it's easy for a lot of people to just vote for the person in office, on the assumption that the challenger is a flake. And who can keep track of ten or twenty different judicial races, when you're voting for federal, state, county, school board, park district, who knows what else?

There might be room for a motivated fringe group to manipulate one of those obscure races to put someone in office, but I can't remember a case of that succeeding here. At least, not yet. Our experience doesn't necessarily predict how this would play out in a different state, of course.
posted by gimonca at 9:54 AM on September 25, 2022 [9 favorites]

I’d rather judges be appointed, and then subject to retention elections. This allows voters to remove “bad” judges while not making each election a culture war over crime, abortion, etc. Voters would need to cast two sets of votes though - one to decide whether or not to retain the judge, and a second election (not on the same ballot/same day) to choose a replacement if they are not retained.
posted by SirOmega at 9:59 AM on September 25, 2022 [4 favorites]

Voting seems democratic on the face of it, but what does it mean to elect < Insert Job or Referendum Here >

In most of the country we've broken Representative Democracy by making running for office so expensive and having such a disproportionate difference between number of people and number of Representatives. At the same time, Direct Democracy, directly voting on so many issues and individuals, is the sort of thing which only seems to make sense in the abstract. Even the most engaged of us tend to arrive in the voting booth thinking we are ready only to come across a position we need to vote for and no realistic way to have an in depth knowledge of exactly the role that position has in our government, the range of action allowed by holders of the position, and the individual candidates and how their personal perspectives would play into that range of actions. So, we make many more uninformed votes than informed ones in these 'down-ballot' races.

Proposals like this, to disguise partisan change as a broadening of Democracy are exactly why we should look to different options for more meaningful representation.
posted by meinvt at 10:03 AM on September 25, 2022 [5 favorites]

As for election v. appointments of judges, the poly-sci-informed good-government position is "we have too many elected positions in America and judges are the prime example."

I don't do judicial politics and haven't taught a graduate state politics course in a few years and so haven't picked up the last couple-few years of stuff there. But the polisci position is that judicial selection methods don't make much difference, with the exception that Missouri systems are associated with more diverse judges. Missouri system =

(1) Commission formed with some members assigned by governor, some by legislature, others by others
(2) Commission creates list of judge candidates
(3) Governor appoints from that list
(4) Judges sit for retention elections

Most judicial politics folks I know say that being overturned is sufficiently unpleasant to most judges that they try to rule "correctly." I can't recall if people have specifically examined that subset of cases where a state highest court is ruling on the state constitution and so is the final authority, but studies there would face hard data problems.
posted by GCU Sweet and Full of Grace at 10:23 AM on September 25, 2022 [10 favorites]

If this doesn't work then setting up a parallel court system is not unprecedented.
posted by NoThisIsPatrick at 11:53 AM on September 25, 2022 [1 favorite]

“We have to make sure that the next constitutional amendment is crystal clear — so that they cannot deceive, they cannot convince voters that the amendment is what it is not,” Kobach said.

Misleading Kansas abortion texts linked to Republican-aligned firm (washpo)

“Women in KS are losing their choice on reproductive rights,” the text warned. “Voting YES on the Amendment will give women a choice. Vote YES to protect women’s health.”

Tell me again who was trying to deceive voters. It's all projection with these fuckers.
posted by adept256 at 12:35 PM on September 25, 2022 [19 favorites]

And FFS, you lost in a landslide. People don't want it, so go fuck yourself.
posted by adept256 at 12:37 PM on September 25, 2022 [21 favorites]

People don't want it, so go fuck yourself.

agreed but there's no arguing that with someone who believes themselves to be righteous in the name of*
posted by djseafood at 12:53 PM on September 25, 2022

The issue I've always had with electing judges is that the structure of their job makes it almost impossible to do research on them, and therefore its almost impossible to have a broadly informed, engaged electorate. Nonpartisan election is great but if without a party selection, and without public positions on issues, and with real difficulty finding their past record, what should people be voting based on?
posted by penduluum at 1:05 PM on September 25, 2022 [9 favorites]

Maybe every case should be judged by a panel of nine: three elected, three appointed, and three assigned by sortition. That ought to solve the problem.
posted by Faint of Butt at 1:45 PM on September 25, 2022 [2 favorites]

Also all rulings should be made twice; once when drunk, then reconsidered when sober.
posted by Nelson at 2:06 PM on September 25, 2022 [6 favorites]

There might be room for a motivated fringe group to manipulate one of those obscure races to put someone in office, but I can't remember a case of that succeeding here. At least, not yet. Our experience doesn't necessarily predict how this would play out in a different state, of course.

Texas judges are all elected, from the State Supreme Court all the way to traffic court. Election years have seen both democratic and republican affiliated judges lose office due to "vote republican" or "vote democratic" pushes. And as alluded to earlier, judgeships have also been a stepping stone to go from a lower judgeship to an appointment as a filler for a higher vacated judgeship -- for which of course, the appointee is now the incumbent with all those advantages,

Judges in Texas have been influential on both sides of the abortion rulings as well as election standards, gay rights, civil settlements, oil company rights, and marital rights. Let me know if you want cites.

As to putting candidates in obscure races, Texas republicans for years have done that. Not only are these then are the incumbent for future years, it's another stepping stone pool to draw from for candidates for higher offices.
posted by beaning at 2:09 PM on September 25, 2022 [1 favorite]

the wording of the Republican-crafted Value Them Both amendment, saying it confused voters and allowed the Vote No campaign to “muddy the waters.”

Which, as geoff says, was entirely intentional on their part, in an attempt to trick people they know damn well don't want this into accidentally voting for it. It didn't work, and trying to turn that backfired strategy into an excuse is ridiculous. As in, they should be ridiculed, loudly and often.

The unfortunate fact for you, Kobach, is that the people of Kansas do not want this. It's your right to spend more time trying to convince them. Instead, you're trying to trick and force them. But they're on to you, and it will never work again with your name attached to it.
posted by ctmf at 2:45 PM on September 25, 2022 [3 favorites]

I just noticed the typo in the post, though it only improves it.

wa wa wa, we can't enforce our monstrous inhumanity, wa wa wa
posted by adept256 at 4:27 PM on September 25, 2022 [1 favorite]

"Minnesota has elected judges."

So does Illinois, and Cook County (Chicago + near suburbs) is one of the largest unified court system in the entire world, and I have to vote on like 75 fuckin' judges every election. Part of the problem is that there's way too many for anybody to care -- my hand literally gets tired voting for judges -- but it's also really hard to evaluate judicial qualifications in an election situation.

A common-enough gambit that there are rules prohibiting doing this within X numbers of days of an election is for GOP candidates for judge in Cook County to LITERALLY CHANGE THEIR NAMES, basically always to something Irish, to try to "trick" Democratic voters into voting for them.

A Republican named Phillip Spiwak changed his name to "Shannon O'Malley" and his party affiliation to Democrat, and despite being rated as unqualified by all bar associations that do judicial race rankings, won.
posted by Eyebrows McGee at 5:05 PM on September 25, 2022 [15 favorites]

> Even the most engaged of us tend to arrive in the voting booth

This is the problem. Here in Washington, my family sits down with our mail in ballots and spends a few concentrated hours researching. We use social media and phone calls to talk with other folks to try to collect information.

That being said, we have elected judges, too, and judicial elections are hard. Our local democratic organization spends a fair amount of time talking to the candidates to try to elicit information. Fortunately it's usually unopposed incumbent or unopposed incument plus wacko. I'd say about one in ten times it actually is a real discussion.
posted by madhadron at 6:46 PM on September 25, 2022 [1 favorite]

Kris Kobach is a power-hungry son of a bitch. That is absolutely the nicest thing I can say about him. Teegeeack is right that Kobach is very unpopular here, even within his own party. But I have seen unpopular people elected simply because there was an (R) by their name, and lots of (R)s will vote for the SOB rather than vote for the (D). I am reasonably hopeful Kobach won't win, but I'm fearful of what he would do in office if he did.
posted by bryon at 6:54 PM on September 25, 2022 [5 favorites]

in an attempt to trick people they know damn well don't want this into accidentally voting for it.

I mean, reason number not-even-near-the-top-of-the-list why I don't understand Republicans, but if I caught my elected rep trying to outright trick me like that, they'd be out on their ass next election even if they were my party. Not ok.
posted by ctmf at 6:58 PM on September 25, 2022 [4 favorites]

I really want to hope that the defeat of their bill means a more general electoral defeat for Republicans. I worry that it won't because Democratic policies always poll really well, but that doesn't translate into more people voting for Democrats.

A nice simple "abortion legal yes/no" election is where we can win fairly easily. It's the general elections where people are all "well Handmaid is bad but gun, gays, and jeebus so I'll vote Republican!" I'm not so confident.
posted by sotonohito at 7:41 PM on September 25, 2022 [1 favorite]

It's such a self-defeating strategy. I have no idea what Kobach or Graham are thinking.

What else have they got? "Look at all the great legislation that we passed?" "Check out the forward-thinking leadership coming from our party?" "The blowhard that we support unconditionally hasn't been indicted yet?"

Sometimes your perceived options are (a) pander and (b) pander harder.
posted by delfin at 6:54 AM on September 26, 2022 [6 favorites]

The problem is that Kansas is a relatively easy state to govern. It has a homogeneous population, relatively affluent, no natural disasters or issues with border security and frankly not a lot of natural resource problems. There's simply also no need for massive infrastructure problems.

There's not a lot to debate when it comes to the difference between democrats and the republicans. When arguing what problems to solve, well there's not a lot to solve. I think Kansas could be doing a lot more in investing in higher education and capitalize on the term, ugh, "Silicon Prairie" but people here are pretty well set and there's an ethos of not rising above your station.

So you get Kobach and he might have problems but has an (R) next to his name and can't do too much damage in the minds of voters. There's just not passionate issues like in more complex states.

Don't get me wrong there's a lot of problems with Kansas, just not big national talking points people can drum up.
posted by geoff. at 8:11 AM on September 26, 2022 [3 favorites]

no natural disasters or issues with border security and frankly not a lot of natural resource problems.

I lived through the 100-mph windstorm and fires last December. There wasn't a roof from here to the Colorado border that didn't need to be replaced (I'm still waiting to get my replaced.) As for natural resources, the entire western part of the state is going to be facing huge problems with water at some point in the future when it not longer is feasible to pump water from the Ogallalah.
posted by drstrangelove at 8:48 AM on September 26, 2022 [8 favorites]

At what point will the sane decide enough of this?
posted by aiq at 9:29 AM on September 26, 2022 [1 favorite]

I mean, Kansas isn't a monolith, it's a pretty big state with quite a bit of variety. It actually in real life gets a shitload of tornadoes, it's not just a Wizard of Oz thing. And a whole big chunk of Western KS is always on the cusp of reverting to desert. And it's more culturally and economically diverse than it looks on paper.
posted by aspersioncast at 9:43 AM on September 26, 2022 [4 favorites]

it's also hard to argue against it without saying that the people shouldn't be trusted to make decisions like that, or on many other things

It's not really a matter of trust as much as it is a question of "what positions are best treated as inherently political and therefore subject to election?" For me, the judiciary does not fall into this category. The very idea of having "Republican judges" and "Democratic judges" cuts against the idea of an impartial judiciary. I realize the objections to my position--all people are inherently biased, so we might as well know their biases--but I think we're still better off enshrining the idea of a non-political judiciary. Having clear impeachment and recall mechanisms is a good idea, though.
posted by Pater Aletheias at 9:43 AM on September 26, 2022 [1 favorite]

The very idea of having "Republican judges" and "Democratic judges" cuts against the idea of an impartial judiciary.

I'm Canadian. We don't elect our judges. There are pros and cons to that. But one thing that I've often wondered about is how the process of getting elected skews the judicial process. As a voter, I don't have time to review each judge's individual decisions. So I'm probably going on either statistics, identity, or wedge cases I've heard about. I'm not sure any of those tell you whether someone is a good judge - fair and applying the law as intended. I don't know how you all make those decisions.
posted by warriorqueen at 10:13 AM on September 26, 2022

warriorqueen, a lot of us rely on endorsements. If the Teachers Union and Planned Parenthood endorse a judicial candidate, I'm much more likely to vote for that person.
posted by cooker girl at 10:37 AM on September 26, 2022 [2 favorites]

all people are inherently biased

All laws, too.
posted by Lentrohamsanin at 11:31 AM on September 26, 2022

but I think we're still better off enshrining the idea of a non-political judiciary

You ask to enshrine a unicorn, then, as there is no such thing. Everything is political - and if it doesn't seem like that to you, that's because you have enough privilege to get to ignore that.
posted by NoxAeternum at 6:36 AM on September 27, 2022 [2 favorites]

Perhaps "a less egregiously political, more ACTUALLY BASING THINGS ON THE FRICKIN LAW" sort of judiciary, then.
posted by rmd1023 at 7:18 AM on September 29, 2022