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James Bopp Jr., the constitutional terror of Terre Haute, Indiana doesn't like the way the state of Kansas selects its Supreme Court Justices:

An Indiana lawyer has filed a federal lawsuit on behalf of four Kansans, trying to block the filling of a current opening on the Kansas Supreme Court.

The suit seeks to change the way the Kansas Constitution allows the appointment of justices to the state's Supreme Court.

Attorney James Bopp, the lead counsel on the case, also worked on a case which this year resulted in the U.S. Supreme Court overturning controls on campaign financing for corporations.

I'm sure that this is merely the beginning of Bopp's mucking around in the state. Wait till he gets to the issue of how campaigns are financed and watch the lawsuits fly.

Bopp's lawsuit seeks a federal restraining order to prevent a nominating commission from filling the vacancy on the Kansas Supreme Court left by the recent retirement and death of Chief Justice Robert Davis.

As it is done now in Kansas, a nominating committee of nine lawyers and laypeople interviews applicants and recommends three names to the governor for final appointment. Bopp is asking a federal judge to prohibit the nominating committee from being involved in the process, contending that because most people on the nominating committee are lawyers it limits the right of voters to be involved in the process of selecting judges to the state's highest court.

The State of Kansas would like to see the vacancy "expeditiously so that the Supreme Court can stay current with its caseload."

U.S. District Judge Monti Belot will be hearing the case.

Bopp is invoking the equal protection clause of the U.S. Constitution on the grounds that it denies ordinary Kansas voters an equal voice in selecting justices for the Kansas Supreme Court.

Kansas has the most elitist Supreme Court justice selection process in the United States according to Bopp. It is the only state that gives its licensed lawyers, the state bar, majority control in selecting its Supreme Court Nominating Commission.

.... "That’s the whole object of all of this, to get the selection of judges away from the people and put it with the elites," Bopp told KansasWatchdog. "There’s no one more self interested in who our judges are than lawyers and so they have a desire to dominate the process and in some cases have been able to do that."

The case is Dool, et al. v. Burke, et al., No. 6:10-cv-1286, available in PDF format online at the James Madison Center’s website,

The issue of elected judges vs appointed judges is discussed in one instance at:

Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary
Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

Mr. Bopp may have a point or two about elected judges ... but Mr. Bopp is also the prime most mover in the use of shadowy, secretive campaign funding to throw elections:

Bopp, the longtime counsel to the anti-abortion group National Right to Life, has now almost singlehandedly obliterated many of the nation's relatively modest restrictions on corporate election spending, including the landmark McCain-Feingold campaign finance reform legislation. And he's done it all in the name of the First Amendment. In 2007, Bopp persuaded the Supreme Court to eliminate limits on corporate funding of television ads in Federal Election Commission v. Wisconsin Right to Life, arguing that the rules were an unconstitutional infringement on free speech. A few months later, he represented Citizens United in its battle with the Federal Election Commission (FEC) over its efforts to air a critical documentary about Hillary Clinton on television during the election season—the case that led to Thursday’s major Supreme Court decision.

.... Bopp has a knack for finding provisions in campaign finance laws that have been taken for granted for decades as acceptable restrictions on corporate speech. Then, he makes ACLU-like arguments that such rules violate the First Amendment. Part of Bopp's genius lies in his choice of clients. Although his cases ultimately benefit powerful corporations, their public faces are usually small advocacy groups like Wisconsin Right to Life or Citizens United that are seeking to participate in political debate. Perhaps most impressive, he crafts cases that appear persuasive to people who do not share his agenda (he is a staunch conservative and member of the Republican National Committee). As a journalist and civil libertarian, I was deeply conflicted about the Citizens United case. After viewing the Hillary documentary, I thought Americans ought to be able to watch it on television if they wanted to, and was sympathetic to Bopp's argument that the campaign finance rules in this case resulted in censorship. Clearly the Supreme Court was, too.

Not content with blasting 100 years of campaign-finance precedent out of the water, Bopp is taking aim at other established principles of American election law. His firm is currently representing anti-gay marriage forces in Washington State, California and Maine, where he has filed lawsuits challenging basic transparency provisions in those states' election laws. In October, Bopp persuaded the Supreme Court to overturn a Ninth Circuit decision allowing the disclosure of the names of people who signed petitions to put an anti-gay marriage measure on the Washington State ballot. In California, Bopp has sued state elections officials in an attempt to have state donor disclosure rules deemed unconstitutional. Bopp has argued that laws requiring donor names to be made public subjected supporters of Proposition 8—which struck down gay marriage in the state—to harassment that violated their free speech rights. That case is still pending.

More states ... and more lawsuits ... to follow, I'm very sure.

Originally posted to Karen Hedwig Backman on Sat Aug 28, 2010 at 10:27 AM PDT.

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