As Election Day approaches, what should be a nonpartisan race for judge on Kentucky’s highest court has become a high-stakes showdown injected with political rhetoric and imagery.
Supreme Court 6th District nominee Joseph Fischer appears in a recent campaign ad telling voters he is ‘committed to upholding the rule of law, not radical militant politics’ as photos flash of his opponent, outgoing Justice Michelle Keller, as well as United States Supreme Court Justice Elena Kagan and retired Justice Stephen Breyer.
Fischer, a longtime GOP state legislator, casts himself as “the conservative Republican” in the race and boasts of an elephant in his campaign signs. And he’s counting on the abortion issue to distinguish himself from Keller, who is fighting to preserve the seat to which she was first nominated in 2013 by the then-governor. Steve Beshear, a Democrat. (Keller told NBC News she is a registered independent.)
Fischer is also the author of Kentucky’s “trigger” law of 2019, which went into effect when the U.S. Supreme Court struck down Roe v. Wade in June and made most abortions illegal in the state.
Much like the nation’s High Court, where judges’ ideologies can color their interpretation of the law, state and local judges are attracting renewed attention for the power they wield, whether to quash warrants of Covid-19 mask or block abortion bans. This year, with 84 seats up for grabs in state Supreme Court races nationwide — the highest number in recent years, according to election monitoring organization Ballotpedia — these short-ballot races are taking a increased importance and scrutiny.
In a handful of states, like Illinois, North Carolina and Ohio, the ideological makeup of their supreme courts could change with this election, while in other states, like Montana, campaign spending record and increased politicization are blurring the lines between the legislative and judicial branches even further.
And while sitting justices in state Supreme Court races typically win — they won reelection 93% of the time from 2008 to 2021, according to Ballotpedia — observers say events of the past year may give a boost to some challengers.
Four of Kentucky’s seven state Supreme Court seats are up on Nov. 8, with three of those races contested. In the Supreme Court‘s 6th District, a reliable Republican-leaning stretch of northern counties, the race between Fischer and Keller will be a test of whether voters want a newcomer who is staunchly political or prefer the more low-key incumbent. said Laura Moyer, an associate professor of political science at the University of Louisville.
“In Kentucky, there are so many court races that you vote on a lot of names. At some point, everything just works together,” Moyer said. “Granted, Fischer is savvy in playing his position, but it will be interesting to see in a non-partisan race that people may not have paid attention to before if voters want to be represented by someone they can trust. ‘identify with values.’
Reshaping the Courts
Conservative Kentucky operatives have singled out the state Supreme Court as an institution they say needs remodeling because it skews liberalism.
Donors and outside groups are also paying close attention: The Republican State Leadership Committee, a DC-based organization that seeks to elect Republicans at the state level, announced last week that it is donating $375,000 in ad buys for a pro-Fischer ad. The ad opens by claiming that “Joe Biden and Nancy Pelosi’s socialist agenda threatens Kentucky families and our way of life.”
Meanwhile, a new political action committee called Fair Courts America-Kentucky, which reports to the Illinois-based conservative group Restoration of America, said this month it would spend up to $1.6 million dollars in candidates he is supporting in three Kentucky court races, including the 6th District Supreme Court, The Courier Journal reported.
These court-centric initiatives come as states see a wave of efforts to either uphold abortion rights or enact tougher laws in line with Roe’s reversal.
In the November ballot in Kentucky, voters will decide whether the state Constitution should be amended to clarify that it does not protect the right to abortion, keeping the state ban in place. But if the amendment is defeated, a legal challenge by the American Civil Liberties Union and Planned Parenthood seeking to overturn the ban will continue in the state Supreme Court.
Fischer, who drafted the ballot amendment as a state lawmaker, did not respond to requests for comment about his campaign and the election.
Keller said she understands the weight of her role as a state Supreme Court justice and why there was sudden interest in her re-election bid, but she thinks it would be misguided for herself or for any candidate for the bench to commit to one side on an issue — at the risk of appearing biased or possibly having to recuse himself.
“Lady Justice wears a blindfold for a reason,” Keller said.
Suffocating freedom of expression?
Judges in each state are generally bound by moral and ethical codes of conduct, part of which is to refrain from any appearance of political bias on the part of the bench – even if they are elected in a partisan race.
In Illinois, where judicial elections are partisan and Democrats could lose their narrow majority on the state Supreme Court in November, the tone has become so troubling that the Illinois Judges Association, which represents 1,250 serving and retired judges issued a statement this month reminding members on the bench to remain neutral and not succumb to a “political agenda”.
Fischer is the subject of two complaints filed with the Kentucky Judicial Conduct Commission, alleging that his overt political party affiliation undermines the justice system and that he made “promises, promises or undertakings” in connection with cases likely to come before the court, “particularly the question of Abortion.” A committee meeting on the subject is scheduled for next week.
Fischer and his campaign filed a federal lawsuit this month against the commission seeking a temporary restraining order that would protect his First Amendment rights “from being otherwise chilled by defendants’ threat of execution against him.”
Fischer in his lawsuit denied ever promising to rule in any particular way and wrote on social media that having a moral conviction on an issue should not preclude a judge’s ability to “put aside his personal opinions on political matters and decide each individual”. case based on the law as written.
The chairman of the Judicial Conduct Commission did not immediately respond to a request for comment. Fischer’s attorney, Chris Wiest, said in an email that he believed the suit would prevail because of the precedent set in a 2002 U.S. Supreme Court case brought by the Republican Party of Minnesota regarding how the speech of justice candidates should not be restricted.
“If we are going to have judicial elections, instead of nominations, voters have a right to know what the candidates stand for on issues, especially in the courts of appeal and the supreme courts, which define policy by their decisions. and interpret state constitutions,” Weist said. .
But not everyone is convinced that a judicial candidate who takes sides on an issue can be trusted to make an independent decision once elected.
Bill Cunningham, who served on the Kentucky Supreme Court from 2007 to 2019 and backed Keller in the 6th District race, said that may be especially true for newcomers who come from a partisan background or who don’t have no criminal record for voters to analyze.
“You sleep with dogs, you’re going to get fleas,” Cunningham said.
A “new frontier”
In Montana, Republicans have accused the Supreme Courts of seven member states of having a “liberal bias,” especially as Democratic governors have filled vacancies on the court in recent years.
But in 2021, the Republican-controlled Legislature gave Gov. Greg Gianforte, a Republican, the power to directly appoint judges to open seats, eliminating a commission that had reviewed potential nominees.
Now the state’s top Republicans are looking to judicial elections, throwing their support in November at James Brown, attorney and chairman of the Montana Public Utilities Oversight Board, who is running against a sitting Supreme Court justice. of the state, Ingrid Gustafson. Montana Supreme Court elections are nonpartisan and statewide.
Brown said at a candidate forum last month that it was Gianforte who called him and encouraged him to run for the state’s highest court, believing he could be a foil for judges “legislating from the bench”.
Such maneuvers by a sitting governor would be a “new frontier” in nonpartisan judicial elections, said Jeremy Johnson, an associate professor of political science at Carroll College in Helena.
But there is even more at stake in November, he added.
Montana voters must also decide on an abortion-related ballot measure. Although the procedure remains protected by the state Constitution, Republican lawmakers are seeking to criminalize health care providers who fail to take “all medically appropriate and reasonable steps to preserve the life” of a born-alive child. including during a failed abortion.
The abortion issue has seeped into the state Supreme Court race, with anti-abortion groups declaring Brown their preferred candidate and abortion rights advocates fundraiser on behalf of Gustafson. Neither candidate was egregious about how they would rule on abortion, and both told the Montana Free Press their goal was to remain impartial in the cases before them.
Elected officials can endorse judicial candidates, but Montana’s Code of Judicial Ethics prohibits candidates from seeking or using such endorsements in their campaigns.
So far, Brown and Gustafson have each raised hundreds of thousands of dollars, according to campaign finance records, and the Montana Republican Party committee has spent more on ads for Brown than any other legislative candidate. of the GOP this election. Gustafson is backed by some Democrats and Republicans.
No matter which candidate wins, the ideological makeup of the Montana Supreme Court will not change immediately. Still, Johnson said, this year’s election lays the groundwork for a playbook for future races.
“This injection of politics is a relatively new thing,” he added, “and I think it’s here to stay, God help us all.”