Voice For Liberty

Tag: Jean Schodorf

  • As lawmakers, Kansas judges should be selected democratically

    As lawmakers, Kansas judges should be selected democratically

    Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.

    A 2012 paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the judicial selection process in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas court that uses the method of judicial selection described in the paper — the Missouri Plan — is the Kansas Supreme Court. (Prior to July 1, 2103, the Kansas Court of Appeals also used the Missouri Plan for judicial selection.)

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

    A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

    Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

    In the paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    Prospects for Kansas

    In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. In 2012 the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

    Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

    Owens, it should be noted, is an attorney, and is, therefore, a member of the privileged class that has outsize power in selecting judges.

    Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

    Contrary to Schodorf, the bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

    Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

    With the change in the composition of the Kansas Senate, the climate became favorable for reform of the way judges are selected for the Kansas Court of Appeals. In 2013 legislation reforming judicial selection for this court was passed and signed into law, taking effect on July 1, 2013. Now these justices are selected by appointment of the governor with confirmation by the senate. The law governing how judges for the Kansas Supreme Court are selected is part of the Kansas Constitution, and would require an amendment to alter the process. That requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

    By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

  • As lawmakers, Kansas judges should be selected democratically

    Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

    A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

    A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

    Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

    Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    Prospects for Kansas

    In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. Last year the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

    Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

    Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

    Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

    The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

    Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

    With the change in composition of the Kansas Senate, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

    By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

  • Kansas lawmakers, including judges, should be selected democratically

    While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

    A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

    At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

    A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

    Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

    Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

    But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

    Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

    Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

    Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

    The result: New Kansas law, made by people selected through an undemocratic process.

    In conclusion, Ware writes:

    Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

    Prospects for Kansas

    In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. The House of Representatives has passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

    One of the dividing lines between “conservative” and “moderate” Kansas Senate Republicans is their attitude towards judicial selection, as revealed in a vote taken earlier this year. Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

    Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

    Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

    The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

    Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

    With the change in composition of the Kansas Senate next year, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

    Just last week a federal appeals court ruled that the method Kansas uses to select justices to the Kansas Supreme Court is constitutional.

    The Court’s discussion starts on a promising note: “That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial.”

    But in the end, the Court sided with the present undemocratic Kansas system: “Kansas designed the Commission to favor lawyers in order to limit the influence of politics on the nomination process and ensure the quality of its judicial nominees. Preserving the quality and independence of the judiciary is a legitimate government interest, and having attorneys elect a majority of the Commission’s members is a rational way to accomplish that goal. Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation. This is owing in part to their training which enables informed judgments about a candidate’s experience — his credentials, his area of expertise, his body of work — and the extent to which it strengthens or weakens his candidacy. ”

    Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
    By Stephen J. Ware

    Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

    The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

    This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

    The complete paper may be downloaded at no charge here.

  • Schodorf legacy should be evaluated on policy, not politics

    News that Kansas Senator Jean Schodorf is leaving the Republican Party after her primary election loss has been treated as mostly a political story, which it certainly is. More important, however, is the potential for new policies and laws regarding Kansas schools that hold the promise of helping Kansas schoolchildren and families.

    Senator Schodorf’s most notable cause has been education. As chair of the senate education committee, she has been in a position of tremendous influence over education policy in Kansas. We should examine, then, the results of Kansas education policy.

    This summer Kansas received a waiver from the main provisions of the federal No Child Left Behind Act. As part of the waiver, Kansas agreed to create a teacher evaluation system that includes student achievement as a significant factor in the evaluation. Many people would probably be surprised to learn that student achievement isn’t already the major factor, perhaps even the only factor, in teacher evaluations. But under Schodorf’s chairmanship of the senate education committee, this isn’t the case.

    Related to this is that Kansas ranks low in policies on teacher quality. Plentiful research shows that among the factors that schools have under their control, teacher effectiveness is by far most important. But under Schodorf’s chairmanship of the senate education committee, these important and broad-reaching reforms were not considered. Instead, her committee devoted enormous time and effort to tinkering with minor issues such as teacher tenure policy, itself a harmful policy.

    It’s true that performance on the assessments that are under the control of Kansas are rising. But scores on the National Assessment of Educational Progress (NAEP) for Kansas students don’t reflect the same trend. Scores on this test, which is given every two years, aren’t rising like the Kansas-controlled test scores. These scores are largely unchanged over the past years.

    Senator Schodorf, in her position of chair of the senate education committee, could have asked for an investigation as to why there exists this discrepancy. But she didn’t.

    Speaking of test scores: Kansas often proudly claims that its schools rank very well when compared with other states. Compare Kansas with Texas, a state that Kansas school spending boosters like to deride as a state with low-performing schools. But you don’t have to look very hard to realize that these scores are a statistical artifact. It’s an unfortunate fact that minority students do not perform as well on these tests as white students. When you combine this with the fact that Kansas has a relatively small minority population, we can see why Kansas ranks well. In Kansas 69 percent of students are white, while in Texas that number is 33 percent. So it’s not surprising that overall, Kansas outperforms Texas (with one tie) when considering all students in four important areas: fourth and eighth grade reading, and fourth and eighth grade math.

    But looking at Hispanic students only, Texas beats or ties Kansas in these four areas. For black students, Texas bests Kansas in all four. Texas does this with much less spending per pupil than Kansas.

    Kansas also likes to brag of its high standards for schools. But when compared to other states, Kansas has low standards. The U.S. Department of Education’s National Center for Education Statistics (NCES) has analyzed state standards, and we can see that Kansas has standards that are below most states. The table of figures is available at Estimated NAEP scale equivalent scores for state proficiency standards, for reading and mathematics in 2009, by grade and state. An analysis of these tables by the Kansas Policy Institute shows that few states have standards below the Kansas standards.

    This table is from KPI’s report earlier this year titled Removing Barriers to Better Public Education: Analyzing the facts about student achievement and school spending.

    The conclusion by NCES is “… most states’ proficiency standards are at or below NAEP’s definition of Basic performance.” KPI, based on simple analysis of the NCES data, concluded: “Kansas is one of those states, with its Reading Proficiency standard set lower than what the U.S. Department of Education considers Basic performance. Math Proficiency levels are above what NAEP considers to be Basic but still well below the U.S. standard for Proficient.” Did Senator Schodorf, in her role as education committee chair, push for increasing Kansas standards? If she did, we didn’t hear of it, and it certainly didn’t become policy or law.

    Across the country, charter schools and school choice programs are offering choice and improved educational outcomes to families. While Kansas has charter schools, the charter school law in Kansas is one of the weakest in the nation, and virtually guarantees that public schools won’t face much meaningful competition from charters. School choice in the form of vouchers or tax credits doesn’t exist at all in Kansas. As a result, Kansas public schools face very little of the competitive forces that have been found to spur public schools to improvement across the country. As chair of the senate education committee, Senator Schodorf worked to make sure that charter schools and school choice are not available to Kansas families.

    The departure of Senator Schodorf and other moderate senators is a political story. But it presents a chance for Kansas to make some important changes to its schools that are greatly needed. For this important policy reason, we shouldn’t mourn the loss of Schodorf and the other moderates.

  • In Kansas, rejecting left-wing Republicans

    The headline in the Kansas City Star reads “Voters reject middle ground in Kansas Senate races.” A more accurate conclusion is that voters have realized that the governance of Kansas by a coalition of Democrats and left-wing Republicans has not been in the state’s best interest. Stagnate job growth as compared to other states, increasing spending on schools with no accountability and not even an honest discussion of achievement, falling behind other states in school reform and school choice, a highly undemocratic method of selecting our state’s top judges, resistance to privatization and other measures to streamline government, business tax costs topped by only a few other states: these are some of the results of this coalition.

    But yesterday, Kansas voters said goodbye to many of the left-wing Republicans — the so-called “moderates” or “traditional Republicans” — and nominated conservatives in their place. Some nominees face Democratic challengers in November.

    The results are a surprise not only for the number of victories by conservatives, but the margin of victory. In Johnson County, incumbent Senator Tim Owens was defeated 60 to 40. Owens ranked at the bottom of all senators — Democrats included — in the Kansas Economic Freedom Index.

    In a neighboring district, incumbent Senator Mary Pilcher-Cook won her primary election by a 64 to 36 margin. Pilcher-Cook ranked at the top of the Kansas Economic Freedom index. Conservative Steve Abrams, who ranked well in the KEFI, also defeated a challenger.

    Another notable result is the defeat of Senate President Steve Morris.

    Other defeats of moderates, some being incumbents, include Jeff Melcher over Pat Colloton to replace John Vratil, Jacob LaTurner over Bob Marshall, Forrest Knox over John Grange, Jeff King over Dwayne Umbarger, Greg Smith over Joe Beveridge, Bob Reader over Roger Reitz, Tom Arpke over Pete Brungardt, Michael O’Donnell over Jean Schodorf, Mitch Holmes over Ruth Teichmann, and Dan Kerschen over Dick Kelsey. Kelsey will dispute being lumped in the moderate camp, but on economic freedom issues, he ranked just barely above neutral.

    There were some victories for the moderates. Kay Wolf won the primary to replace Terrie Huntington, which is a retention for moderates. In Topeka, moderate Vicki Schmidt retains a place in the Senate, as does Carolyn McGinn in south-central Kansas. Pat Apple defeated a challenge from Charlotte O’Hara. Apple ranks barely above neutral in the KEFI, while O’Hara, in the Kansas House, was near the top. Jeff Longbine survived a challenge from conservative James Fawcett.

    Commenting on the results, Americans for Prosperity–Kansas state director Derrick Sontag said “The primary results make one thing clear: Kansans support those who promote fiscally conservative, limited government, free market policies. Fiscal conservatives are now being elected because of the policies that have failed our state for years. This new field of candidates vying for office reflects a continued desire to put a stop to the rampant state spending and high tax burdens of the past. It is evident from the results at the ballot box that Kansans want a reasonable, responsible government and we are optimistic that our state is now starting to head down the path toward prosperity and a strong Kansas economy.”

    In local races in south-central Kansas, voters rejected the challenge by left-wing Republican Wichita City Council Member Jeff Longwell to incumbent Karl Peterjohn. Longwell had the endorsement of Wichita Mayor Carl Brewer and all Wichita City Council members except Michael O’Donnell (district 4, south and southwest Wichita). Three Sedgwick County Commission members endorsed Longwell, too. As there is no Democratic contestant, this race is over.

    In suburban Andover, voters rejected a proposed property tax increase for schools. Update: After the final canvass of votes, the tax increase passed by two votes.

  • Sedgwick County voter registration changes: Impact on senate races

    During the Kansas primary election season, there have been efforts to recruit Democratic party voters to change their voter registration to Republican in order to participate in Republican party primary races. Kansas National Education Association (KNEA) has asked teachers union members to switch their voter registration in order to vote in Republican primaries. KNEA has asked this on its website and in an email that has received widespread attention.

    Former Wichita Mayor Elma Broadfoot has recorded telephone calls urging Democrats to switch party registration so they may vote for moderate Republicans, reports the Wichita Eagle.

    Whether this effort will be successful is unknown. But we now know, for Sedgwick County, how many people have changed their voter registration to Republican in recent months.

    I took a Sedgwick County voter file obtained in May and compared it to one current as of Friday, which is after the deadline for changing voter registration. In the accompanying table, I counted voters who switched to Republican registration from some other party. I grouped the data by Kansas Senate district, as this is where much of the focus has been. I also present totals for Sedgwick County, as some county-wide races may also be impacted.

    Voter registration party changes in Sedgwick County

    It’s important to remember that some of these senate districts are not totally within Sedgwick County, and this table includes only Sedgwick County voters. Districts 25, 26, 27, 28, 29, and 30 are entirely within the county, and all voters in these districts are represented in the table.

    Numbers in context

    Now that we know the number of voters who switched to Republican registration, are these numbers large enough to affect any races? The answer is we simply don’t know. We don’t know why these voters switched to Republican registration. Their motive may be to vote for the moderate candidate, but there could be other reasons, too.

    To place these numbers in context, consider the race for senate district 25, which pits incumbent Jean Schodorf against Wichita City Council Member Michael O’Donnell. In this district, 230 voters switched to Republican registration.

    In the 2008 primary, 2,435 people voted for Schodorf, but there was no opponent. About 4,000 voted for Les Donovan in his primary, and about the same for Susan Wagle in her district, but again these races were uncontested. In the 2008 general election, 16,016 voted for Schodorf over 9,530 cast for her opponent, for a total of 25,546 votes cast, plus a few write-ins. But general elections, by their nature, have a much higher turnout than primaries.

    A better election to compare is the 2004 Republican primary for senate district 30 in east Wichita, when former Wichita Mayor Bob Knight challenged incumbent Susan Wagle in a race that received much attention. Knight received 3,140 votes to Wagle’s 5,624, for a total of 8,764 votes cast.

    230 voters switching registration out of a potential vote total of 8,764 is 2.6 percent. Many races are decided by less than that margin. But again, we don’t know the intent of these 230 voters, and while these voters are probably more motivated than most, some may not vote.

    We should also note that district 27 had 223 voters switch to Republican affiliation during the same period. Incumbent Les Donovan has no primary opponent. He will face a Democrat in the general election, but party registration doesn’t matter at that time. In district 30, 160 voters switched to Republican registration. Incumbent Susan Wagle has no primary opponent.

    It’s also noteworthy that switching to Republican registration is not the only action I observed. For example, in District 25, while 230 voters switched to Republican, 51 Democratic voters switched to Unaffiliated registration, 42 Republicans switched to Unaffiliated, and seven voters became Libertarian party voters. On election day Unaffiliated voters can switch their registration to Republican and vote in the primary.

    Finally, there are new voters of all parties, including Republican. The analysis above counts only voters who changed party registration to Republican.

    Overall, 2,001 voters in Sedgwick County switched party registration during this two-month period, with 1,126 switching to Republican.

  • Kansas fourth district poll shows Pompeo lead, little change

    A KWCH Television and SurveyUSA poll of candidates for United States Congress from the fourth district of Kansas shows little change from a similar poll about a month ago.

    The poll shows Republican Mike Pompeo leading Democrat Raj Goyle by 50 percent to 40 percent. These numbers changed just slightly from the previous survey, which had Pompeo leading 49 percent to 42 percent. Neither of the changes are statistically significant.

    Four percent of the voters are undecided.

    Other results include Reform party candidate Susan Ducey with four percent, and Libertarian David Moffett with three percent.

    SurveyUSA’s commentary is as follows: “Compared to an identical SurveyUSA poll released 1 month ago, Pompeo is up an insignificant 1 point; Goyle is down an insignificant 2. Pompeo has gained ground among the oldest, traditionally the most reliable voters, where he had trailed by 16, now leads by 4. Goyle offsets this by cutting into Pompeo’s lead among middle-aged voters, where Pompeo had led by 34 points, now leads by 20. 18% of Republicans today cross over to vote for Goyle, down from 22% last month; 12% of Democrats cross over to vote for Pompeo, up from 6% last month. Independents today lean slightly toward Goyle, favoring the Democrat by 7 points, up from a nominal 2-point lead 1 month ago.”

    Goyle’s campaign has released the results of its own poll from last week, which shows Pompeo leading Goyle by 46 percent to 44 percent, a closer lead than the KWCH/SurveyUSA poll. No details of its methodology were released.

    During the primary election, Jean Schodorf’s campaign released surveys that showed her to be leading. In the end, the KWCH/SurveyUSA poll correctly predicted Pompeo as the winner, although it understated the vote he actually received.

    During the period between the two KWCH/SurveyUSA polls, Goyle has been actively advertising on television. The Pompeo campaign started advertising on September 9th, just before this poll was conducted.

    Kansas fourth Congressional district poll resultsKansas fourth Congressional district poll results

  • Wink Hartman, Libertarian Party candidate?

    As reported by Rebecca Zepick on State of the State KS, former Republican Congressional candidate from the fourth district of Kansas Wink Hartman may be considering another run for that position, this time as nominee of the Kansas Libertarian Party.

    Zepick reported the news Saturday in the story Hartman Considering Re-Entering Race For Congress Against Pompeo and Goyle. She appeared later that day by telephone on KNSS Radio’s Jim Anderson Program, as did several others involved in this story.

    Anderson’s radio program proved to be a sounding board for several issues surrounding this race. For example: All the Republican Party candidates pledged, several times, to support the winner of the Republican primary. A caller to Anderson’s radio show brought up this point, and reminded Anderson — the host of the show — that he, too, made the pledge. Anderson became agitated, at one point threatening to cut off the caller.

    Anderson said that after a certain point, the campaign changed and became negative. Although he didn’t say so explicitly, it is clear that Anderson believes the negativity releases him from his pledge to support the winner of the primary. “I’m not supporting anybody right now,” he told listeners. He repeated this later in the show.

    After this, Kansas Libertarian Party Chair and candidate for governor Andrew Gray appeared as a guest, calling in by telephone. Gray said the key to Hartman joining the ticket is Hartman’s ability to — currently or in the future — fit in the “Libertarian mode.”

    Michael O’Donnell, a staff member in the Hartman campaign, then appeared by telephone and noted, as had Anderson, that the pledges to support the eventual primary election winner were made before the campaign became negative. True enough.

    But where O’Donnell missed the mark is in his assertion that the Pompeo campaign launched the first negative attacks, referring to information made available about Hartman’s Florida home ownership and his Florida voting record. Hartman’s recent Florida voting record was first reported by me on this site.

    While this information was not convenient to the Hartman campaign, it did not fall into the category of negative campaigning. This is the type of information voters are interested in. It was a matter of public record. It was all true.

    O’Donnell said that the Hartman campaign merely retaliated. But it did much more than that, launching some vicious attacks on Pompeo using the techniques of negative campaigns. Hartman’s campaign escalated the attacks, culminating with a charge against Pompeo that Hartman could not back up with convincing evidence.

    The pledges to support the primary winner were not made conditionally. They were absolute. In particular, candidates Anderson and Jean Schodorf need to step up and support Pompeo, the nominee. Evidently Paij Rutschman has made a financial contribution to the Pompeo campaign, but her website doesn’t endorse Pompeo.

    Looking forward, O’Donnell said that he wanted to make sure that Hartman didn’t appear as a “sore loser mentality.” Losing a primary and then running on a different ticket qualifies as just that: a sore loser. And Hartman lost the primary election in a big way. Hartman’s support declined in the polls as the election drew closer. From July 1 to July 28 his campaign did not receive a single dollar in campaign contributions other than those made by the candidate himself.

    Now Hartman may seek another round.

    It’s difficult to see what positive things Hartman would accomplish as the Libertarian Party candidate. His political views are barely compatible with those of libertarians. Hartman seems the type of Republican that pokes fun of libertarians — like me — for their absolute defense of personal liberty (including legalization of all drugs and prostitution), a peaceful and non-imperialist foreign policy, deregulation of marriage (not prohibiting gay marriage), a welcoming approach to immigrants (instead of the fortified border that Hartman advocated during the campaign), and uncompromising opposition to corporate welfare (as reported, Hartman will receive many millions in such welfare in conjunction with his Hartman Arena).

    Radical forms of libertarianism, including anarcho-capitalism or even the milder minarchism, seem beyond Hartman’s ability to grasp and understand.

    The Kansas Libertarian Party has a decision to make, too. Will it embrace a candidate — one clearly non-libertarian and blemished from running a negative campaign — who can contribute millions to its cause and give the party a big boost in coverage and recognition?

  • Kansas polls and election results

    In the hotly contested Kansas Republican primary elections this year, polls generated a lot of interest. In two Kansas Congressional districts, independent polls did a good job of predicting the vote for all candidates except the two winners, and a candidate’s own poll may have been undermined by large voter turnout.

    In a KWCH/SurveyUSA poll of the Kansas first Congressional district, the poll accurately (within the margin of sampling error) predicted the outcomes for all candidates except for victor Tim Huelskamp. The survey predicted 24 percent of the vote for him, and the actual vote was 35 percent. This poll had three candidates tied, so it didn’t predict a winner.

    The same group also polled the fourth Congressional district. For three candidates — Jim Anderson, Wink Hartman, and Jean Schodorf, the poll predicted the exact percentage that the candidates actually received. The exception was winner Mike Pompeo. The poll predicted he would win and receive 31 percent of the vote. He did win, and his actual vote total was 39 percent.

    An election eve poll by political consulting firm Singularis had mixed results in the fourth district, but is notable in that it predicted eventual winner Pompeo’s vote total closely. The poll indicated 37 percent of the vote, and the actual was 39 percent.

    In the fourth district, Schodorf released four polls that her campaign commissioned. Each poll showed her support increasing, until in the third poll, she took the lead. In the fourth poll her lead increased.

    When comparing this poll to actual election results, we find that Schodorf’s poll overstated her actual performance by six percentage points. The performance of Anderson and Hartman were understated by six and seven points. For winner Pompeo, the final Schodorf poll understated his performance by 13 percentage points. (These polls did not include candidate Paij Rutschman.)

    In a conversation before the election with Schodorf’s pollster, he indicated several reasons why the numbers in her surveys were different than the KWCH/SurveyUSA poll numbers.

    One difference between the polls was the source of the voters called by the pollsters. The KWCH/SurveyUSA polls started with a list of households. To determine likely voters, the pollster would ask respondents if they were going to vote. Schodorf’s polls used voter lists as a source, calling only on voters who had a history of voting in August primary elections.

    Because many people look at voting as a positive civic duty, it is thought that people will overstate their actual tendency to vote, and this is a reason why polls might decide to use voter history as a selection device, especially in primary elections where turnout is generally low. It is standard practice of campaigns to use voter lists in their voter contact efforts.

    But this year voter turnout was high. The Wichita Eagle reported voter turnout in Sedgwick County — home to about 71 percent of the population in the fourth district — was 25 percent. That’s higher than the 19 percent turnout predicted statewide, and higher than in most primary elections.

    Considering Republican voters, the Sedgwick County election office reports there are 104,558 registered Republicans, and 49,967 Republican ballots were cast. That indicates a turnout of almost 48 percent, considering Sedgwick County only.

    By calling only those with a history of primary voting, many people who voted in this election would not have been sampled by polls based on voter history.

    The Schodorf polls were conducted by live operators, while the KWCH/SurveyUSA polls were automated response. This can lead to a difference in the types of people that respond to the poll.

    In the Republican Senate primary between Jerry Moran and Todd Tiahrt, the final KWCH/SurveyUSA poll had Moran ahead by 49 to 39 percent, with eight percent undecided. The actual totals were Moran winning with 50 percent to Tiahrt’s 45 percent, so that poll understated Tiahrt’s total by six percentage points while correctly choosing the winner.