Al Cross: Partisan politics invades judicial races, which are supposed to be nonpartisan

The government of the United States was the first with a clear separation of powers among executive, legislative and judicial branches, and checks and balances that keep one branch from exercising too much power.

Political parties hadn’t firmed up when the Constitution was written, but did soon afterward. After the first transfer of power from one party to another, there was a lawsuit over a last-minute appointment by defeated President John Adams. The great legacy of that case is the Supreme Court’s decision that it could declare laws unconstitutional. New President Thomas Jefferson didn’t like that, but his administration won the case, and he accepted the decision.

So did the nation, affirming Chief Justice John Marshall’s declaration – repeating one made by Adams – that “The government of the United States has been emphatically termed a government of laws, and not of men,” and that courts would decide what those laws meant.

In a system driven by political parties, the courts need separation from partisan politics to help ensure fairness and independence, and states do that to varying degrees. In Kentucky, where we elect judges – on a nonpartisan basis since 1976 – that separation is in danger.

In two races for the state Supreme Court and one for the circuit court that handles most cases involving state government, lots of shadowy money from outside Kentucky is being spent to defeat judges that Republicans don’t like, and it’s being used to buy the sort of scurrilous, misleading ads that are all too familiar in partisan races.

One challenger propped up by outside money, state Rep. Joe Fischer of Fort Thomas, favors partisan judicial elections, is running as “the conservative Republican” and has sued a state commission for allegedly violating his First Amendment rights by investigating the partisan nature of his campaign.

His sugar daddy is the Republican State Leadership Committee’s “Judicial Fairness Initiative,” which announced Oct. 13 that it would spend $375,000 on cable-TV ads for Fischer, who has raised just $54,000 for his own campaign in the 6th Supreme Court District that runs from Bracken County to Shelby County.

Fischer is also on the favorites list of Fair Courts America, a branch of Restoration of America, the nation’s largest political action committee that emphasizes social conservatism. It said in August that it planned to spend $22.5 million on judicial races in seven states – $1.64 million in Kentucky – according to a plan first reported by the Courier Journal.

Fischer’s opponent is Justice Michelle Keller of Fort Mitchell, a registered independent who was initially appointed to fill a vacancy by a Democratic governor, then won election to an eight-year term. For this race, she has raised about $285,000.

In the 2nd Supreme Court District, Court of Appeals Judge Kelly Thompson Jr. told the Lexington Herald-Leader that he switched from independent to Republican to attract votes but expects to be targeted by Fair Courts in his race with fellow Bowling Green lawyer Shawn Alcott.

Fair Courts is already going after Franklin Circuit Judge Phillip Shepherd, who is challenged by Joe Bilby, official attorney for Agriculture Commissioner Ryan Quarles, a Republican candidate for governor next year. A mailer and TV ad fault Shepherd for reducing the five-year prison sentence of a sex offender to 23 months of home incarceration. Commonwealth’s Attorney Larry Cleveland defended Shepherd in The (Frankfort) State Journal: “Given the somewhat unique circumstances of this case, Judge Shepherd correctly applied the law, and that his action not only achieved justice but was also abundantly sensible.”

So, is that the worst Fair Courts has to throw at Shepherd? No, its unusual involvement in a trial-court race is likely driven by Kentucky Republicans’ dislike of Shepherd’s rulings, so its next ad may be about the Supreme Court’s unanimous decision in August that the judge abused discretion in blocking laws that the Republican-run legislature passed to end Democratic Gov. Andy Beshear’s emergency pandemic declaration and put time limits on his emergency powers.

That’s a separation-of-powers question worthy of debate. But so is outside money and the involvement of partisan officials in nonpartisan races, like the Jefferson County GOP’s endorsement of judicial and school-board candidates.

Some Republicans might say that the nonpartisan system isn’t really on the level, in that it allows judges with ideological agendas to reach the bench without real scrutiny. No system is perfect, but my observation of 50 years of judicial elections in this state tells me that the nonpartisan system remains a great improvement on the old one, which was tainted by politics and partisanship even though candidates could file in both party primaries, and usually did.

Judgeships filled with help of a party, and the obligations that entails, will be tainted, further undermining our already low confidence in government.

Somewhere in our system, and surely in the courts, politics shouldn’t matter.

Al Cross (Twitter @ruralj) is a professor in the University of Kentucky School of Journalism and Media and director of its Institute for Rural Journalism and Community Issues. His opinions are his own, not UK’s. He was the longest-serving political writer for the Louisville Courier Journal (1989-2004) and national president of the Society of Professional Journalists in 2001-02. He joined the Kentucky Journalism Hall of Fame in 2010.

NKyTribune is the anchor home for Al Cross’ column.