If former Kansas Secretary of State Kris Kobach wins the race for Kansas attorney general, he promises to turn the office into a litigation machine to fight President Joe Biden’s administration.
“I’ll wake up every morning having my breakfast, thinking about what our next lawsuit against Joe Biden is going to be,” Kobach said at a debate recently.
The three major Republican candidates for Kansas attorney general have all, to some degree, vowed to push back against perceived federal overreach. But Kobach has committed to making legal challenges against the federal government a central focus of the office to an extent that would break new ground in Kansas
The current state attorney general, three-term Republican Derek Schmidt, has filed and signed on to a number of lawsuits challenging the Biden administration but is running for governor instead of for re-election. In 2020, he joined a brief urging the U.S. Supreme Court to overturn the results of the presidential election in battleground states Biden won.
Kobach has promised to go further. His comments reflect a national shift in how candidates and voters view the role of attorneys general. An office traditionally associated with high-profile prosecutions and crackdowns on consumer fraud is increasingly used as a legal weapon to fight charged political and social battles.
Neighboring Missouri offers a vivid example of this transformation. Missouri Attorney General Eric Schmitt, a Republican candidate for U.S. Senate, earlier this year sued dozens of local school districts over mask mandates, in addition to challenging a host of Biden administrative policies.
Kobach originally cultivated a national reputation defending hard-line immigration ordinances and laws, and as secretary of state convinced lawmakers to give him the power to prosecute voter fraud, becoming the only secretary of state in the country with that authority. Running for attorney general, he is now promising to establish a litigation division to fight the Biden administration. He has said he will personally recruit attorneys he has previously worked with to join the unit.
Many of the lawsuits Kansas is currently involved in are legal challenges led by other states that Schmidt has joined, minimizing the amount of resources the Kansas Attorney General’s Office devotes to them. Kobach’s approach, which would involve initiating more lawsuits, would likely require more staff time and attention.
The model for Kobach’s approach is Texas Attorney General Ken Paxton, one of the most publicly aggressive Republican attorneys general in the country.
Paxton recently fought to allow child abuse investigations to proceed against parents who allow transgender children to receive gender-confirming care. He has also filed nearly a dozen immigration-related lawsuits against the Biden administration, according to the Texas Tribune.
“I’ll think you’ll see Kansas be recognized as the other state not to be messed with along with Texas,” Kobach said at a Republican attorney general candidates’ debate last week in Pittsburg.
Paxton is perhaps the most controversial attorney general in the country and remains under felony indictment over allegations of securities fraud. He’s pleaded not guilty. On Wednesday, the Texas Bar sued Paxton over his attempt to overturn the 2020 presidential election.
Kobach’s major GOP competitors – state Sen. Kellie Warren and former federal prosecutor Tony Mattivi – agree on the importance of combating federal overreach. Only Kobach invoked Texas and Paxton during the debate, however.
“I have not heard of any other Republican candidate, around the country, say that they’re emulating Ken Paxton,” said James Tierney, a former Democratic Attorney General of Maine who lectures at Harvard Law School.
What’s role of the Kansas Attorney General’s Office?
Warren, who chairs the Kansas Senate Judiciary Committee, contends she can fight overreach because of her experience opposing the early pandemic restrictions on businesses and gatherings ordered by Democratic Gov. Laura Kelly.
Her case to Republicans largely centers on electability, arguing that while both she and Kobach are conservative, she can win – a dig at Kobach’s loss to Kelly in the 2018 governor’s race and his defeat in the 2020 U.S. Senate GOP primary.
“As chief legal advocate for our state as attorney general, it’s important that we have a fighter who wins,” Warren said.
Mattivi has promised a straightforward approach to the job and has emphasized his experience as a prosecutor.
“If you’re OK with the idea of your chief law enforcement official being a politician, there are two wonderful and capable, qualified politicians in this room for you to choose from,” Mattivi said at the debate, referring to Kobach and Warren.
Still, like Kobach and Warren, he argues attorneys general can play a significant role in fighting the Biden administration. Attorneys general can be “the best line of defense” against overreach, he said.
Whoever wins the Republican primary will likely face Democrat Chris Mann, a former police officer and local prosecutor in Wyandotte County. Mann, who began campaigning last summer but officially filed for office on Thursday, indicated he would move away from politically-tinged lawsuits – not a surprising position for a Democrat who would enter office under a Democratic presidential administration.
“I want to go back to the basics of public safety and not partisan political games,” Mann said.
Mann left open the possibility of lawsuits challenging the federal government, saying that “no matter who the president is, I’ll stand up when there’s something not constitutional or not right for Kansas,” but promised to keep “severe partisan politics” out of the office.
A more politically-charged Kansas Attorney General’s Office would mark a further rupture with how the office was run just a few decades ago. Carla Stovall Steckline, a Republican who was attorney general from 1995 until 2003, said in an interview this week she couldn’t recall suing the federal government, even though Democratic President Bill Clinton was in office for the first part of her tenure.
“The attorneys general always prided themselves on not being political, on not stressing whether you were a Republican or a Democrat or what your political view was,” Steckline said. “It was about justice, enforcing the law, consumer protection, criminal prosecution, those kinds of things.”
Steckline’s successor, Republican Phill Kline, took the office in a much more hard-edged direction, however. He unsuccessfully attempted to prosecute Wichita abortion provider George Tiller, who was later murdered. Kline’s law license was eventually suspended indefinitely over ethical lapses related to his investigation of abortions.
Democrat Paul Morrison, who defeated Kline in 2006, suffered his own scandal. He resigned in 2007 after it became public he had an affair with an office administrator in the Johnson County District Attorney’s Office. Before becoming attorney general, Morrison had been the Johnson County district attorney.
Morrison was the last Democrat to win an election for Kansas attorney general.
Attorney general a ‘policy’ position
Steckline said an overwhelming focus on federal litigation now risks undermining the office’s core functions. Steckline, now a Florida resident, said she hasn’t endorsed or donated to anyone in the race.
Tierney cautioned that the rhetoric from candidates may not ultimately affect the operations of the office, however.
“You’re seeing a lot of smoke,” Tierney said. “If one of these three people gets elected, they’ll hire two or three people to go sue the president all the time. I don’t know how you can sue any more often than they already doing … but will it actually affect the people of Kansas? Probably not.”
Warren said the attorney general is now a policy-driven position, even if that wasn’t always the case.
“It may be, you know, 20-30 years ago it was more prosecutor, but you know what? The office has expert prosecutors in it. The attorney general does not go to court and litigate every case,” Warren said during the debate, a response to Mattivi, who has promised to personally prosecute cases. “If you are, you’re ignoring the other 11 divisions of the office.”
“The attorney general directs and runs policy,” she added.
