U.S. Supreme Court fight contrasts with state system

Monday, August 1, 2005

There is little public scrutiny in the selection of Missouri Supreme Court judges.

JEFFERSON CITY, Mo. -- While attending a luncheon in Kansas City in May, Missouri Supreme Court Judge Mary Rhodes Russell had the honor of sharing a table with Justice Sandra Day O'Connor. During their conversation, Russell said the veteran member of the nation's highest court touted the virtues of Missouri's nonpartisan system of choosing judges and urged Russell to ensure it is preserved.

Several weeks later, O'Connor announced her impending retirement. President George W. Bush's nominee to replace her is about to go through what could be a highly partisan confirmation process.

Ever since the president named federal appeals court Judge John Roberts as his choice for the U.S. Supreme Court, the media has been sifting through his personal background and record as a jurist and lawyer. Interest groups have launched campaigns trumpeting his merits or complaining of his deficiencies.

When he testifies before the Senate Judiciary Committee in the coming weeks, Roberts will be bombarded with questions probing for answers on how he might rule on controversial issues that could come before the court and reshape judicial precedent. One hot-button topic expected to come up is whether he believes women have the constitutional right to obtain an abortion.

Unlike with the federal system, however, there is little public scrutiny -- or open political warfare -- in the selection of Missouri Supreme Court judges.

When Russell, along with other applicants, interviewed with the Appellate Judicial Commission last year for a spot on the state high court, the focus was on professional qualifications and personal suitability to be a judge, she said.

"There were no litmus-test questions asked of us," Russell said.

Under the Missouri Constitution, the commission winnows the field of hopefuls to three finalists, one of whom the governor essentially is obligated to name to the bench.

Rigorous process

While the commission doesn't delve into the political ideology of applicants, Russell said the review process is rigorous. Hopefuls are required to provide detailed personal and professional background information and go through one-on-one interviews with each of the commission's seven members.

"It was probably the most extensive job interview I've had," Russell said.

Under the federal system, the president nominates whomever he wants, although his selection is subject to Senate approval. Whereas the federal process is highly public, Missouri's is conducted behind closed doors.

Judge Duane Benton, whom Russell replaced on the state Supreme Court after the president named him to the U.S. 8th Circuit Court of Appeals, has gone through both processes.

Benton, a former Cape Girardeau resident, said a big difference between the systems is structure. When a vacancy on a state court opens, there are set timetables for the commission to meet and name the finalists and for the governor to make his pick. The whole process is complete within a matter of months.

The federal system, Benton said, is basically open-ended. Although Benton sailed through Senate confirmation in four months -- and without the national attention of a U.S. Supreme Court candidate -- some nominees languish for years.

"I'm a lucky dog," Benton said. "Some people are not so lucky."

In that latter category is Missouri Supreme Court Judge Ronnie White. Former president Bill Clinton named him to the federal bench in the late 1990s. Then-U.S. Sen. John Ashcroft, R-Mo., delayed White's confirmation for more than two years before eventually engineering its defeat.

No political pressure

From a nominee's standpoint, Benton said neither system is better or worse than the other.

"They are both hair-raising," Benton said.

The Appellate Judicial Commission consists of three lawyers elected by the Missouri Bar, three nonlawyers appointed by the governor and the chief justice.

"The lawyers tend to focus on legal stuff," Benton said. "The lay people tend to focus on what kind of person you are."

Missouri Bar president-elect Doug Copeland, a St. Louis lawyer, said the state's nonpartisan court plan, for any drawbacks it might have, successfully shields the selection process from political pressure and special interest influence.

"Judges are not supposed to be friends to any particular part of the population," Copeland said. "They are supposed to be impartial."

For the last several months, the bar has been running public service announcements on Missouri television stations explaining the benefits of the nonpartisan court plan. The ads were prompted by last year's vicious Supreme Court race in Illinois, where judges are elected.

But Copeland said there is nothing to be gained for Missouri to adopt a judicial selection system similar to that at the federal level, which has been suggested from time to time in the state legislature. Copeland said the federal process doesn't necessarily put the most qualified lawyers on the bench.

"It is not really about the person," Copeland said "It is about what the politics are in the country."


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