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Our judges are selected behind closed doorsMonday, July 23, 2007By Thomas M. Walsh and William G. Eckhardt Missouri Supreme Court Justice Ronnie White recently retired, and the process to select his replacement is underway. Few Missouri voters are aware of this, however, because the entire process happens behind closed doors, dictated by the steps outlined in the Missouri Nonpartisan Court Plan for selecting judges. Written when corrupt bosses and political machines dominated urban politics, the so-called Missouri Plan is designed to rid the state judiciary of partisan politics. But more than 65 years later, it is not clear that the plan has worked as its authors hoped. This issue becomes especially pressing with Judge White's retirement from the Missouri Supreme Court next month. While Gov. Matt Blunt has said, "I am committed to appointing a Missouri Supreme Court judge who will faithfully interpret our constitution and will not legislate from the bench," according to a recent poll, what most Missourians don't realize is that the governor does not get to pick the candidates for the Missouri Supreme Court. The truth is that, under the Missouri Plan, attorneys who want to serve on the Missouri Supreme Court or Court of Appeals must apply to the Appellate Judicial Commission. The commission has seven unelected members: three lawyers chosen by the Missouri Bar Association, three nonlawyers chosen by a governor (past or present, depending on the expiration of a commission member's term) and the chief justice of the Missouri Supreme Court (also usually a member of the Missouri Bar Association). After interviews, the commission recommends three candidates to the governor. The governor must choose one of these candidates within 60 days, or the commission picks. At the next general election, the judge is up for unopposed retention to a 12-year term. The plan's goal is sound: Judges should be chosen on merit, not politics. But in the entire history of the plan, only two judges have been voted out of office (one in 1942 and one in 1992). And they were both trial judges. Under the plan, no Supreme Court or Court of Appeals judge has ever been voted out. It stands to reason that bad judges benefit from the plan's yes-or-no retention scheme as well by never having to face an opponent for re-election to their post. The plan's authors thought that politics would not be a factor if judges were selected by experts instead of elected by taxpayers. But politics still influence the commission's decisions. The non-elected Republican commission members generally nominate conservative judges, and the non-elected Democrat commission members generally nominate liberal judges. The plan simply moves politics from the courthouse lawn, where it has thrived since our nation's founding, to behind the commission's closed doors. Those worried about the politicization of the judiciary should consider the words of Supreme Court Justice Louis Brandeis: Sunlight is the best disinfectant. The people of Missouri no longer support the plan. A recent survey reveals that most (two-thirds) of Missourians do not know how the plan works. A stunning 87 percent are unaware that the Missouri Bar Association helps pick the appellate judicial commission. A majority disagree with the retention election model and believe voters should have the greatest input on who serves on the Supreme Court. Significantly, 65 percent support changing the way Missouri selects members of the Commission. If Missouri cannot remove politics completely from the process, it should at least make the politics more representative of the people. Fourteen other states have a more representative version of the Missouri Plan. For example, Florida reformed its judicial commission to correct for the large number of unelected state bar association lawyers on the commission and to allow the governor to choose more commissioners. Many other states have lessened the influence of the state bar association by allowing the legislature and/or governor to choose more commissioners. Under the Missouri Constitution, judges are forced to retire at age 70. As the plan approaches its 70th birthday, Missourians should reconsider the plan in its current form. Thomas M. Walsh is a St. Louis lawyer, and William G. Eckhardt is a professor at the University of Missouri-Kansas City School of Law. Comments  Note: The nature of the Internet makes it impractical for our staff to review every comment. If you feel that a comment is offensive, please Login or Create an account first, and then you will be able to flag a comment as objectionable. 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What is being said here is that legislating from the bench is despicable unless it conforms to right wing fundamentalist dogma. Then, it is just fine! We don't need a Missouri equivalent to King George Bush with cart blanch authority to dictate morality. LEAVE IT THE WAY IT IS!!!
Part of the problem with this debate is that it is often driven by people who attempt to spin inaccurate facts into arguments and draw hasty conclusions from the facts they do cite correctly. This editorial is a good example of that phenomenon in action.
First, the lawyer members of judicial nominating commissions around the state are not "chosen by the Missouri Bar Association," at least not in the sense these writers imply --behind the closed doors of "smoke filled rooms" by five or six bar leaders. Rather, they are elected by their peers.
Secondly, and contrary to the Federalist Society funded push poll that purports to simultaneously indicate that Missourians don't know how judges are selected -- but somehow want to change the process for doing so (?) -- the fact that so few judges have been voted out of office since the Missouri Plan was adopted may just mean that Missourians think the Plan works pretty well and don't feel the need for wholesale changes -- either in the bench or the process that has become a model for 37 states around the country for filling vacancies on it.
These are important issues, and they deserve to be debated by people who are either possessed of the accurate facts -- or who aren't afraid to present them honestly.
Conservatives have been whining ever since they got control of state government about the Missouri Plan for selecting and retaining judges. They just cannot fathom the public helping to make these decisions, and they fail to trust the people to retain or not to retain these judges.
When the authors state that "It stands to reason that bad judges benefit......" from the Missouri Plan, that comment alone sheds all the light needed on their true motivations. They don't trust the public to throw out an unacceptable judge. Maybe the fact that only two judges have been voted out of office since the Missouri Plan took effect proves that very GOOD judges have been selected in this manner.
The Missouri Plan is being used by many, many states and it has become the golden standard of fairness and objectivity for selecting judges and retaining them by the public. What the conservatives want right now is for their Governor Blunt to have a greater say-so in who gets appointed. If we had a Democratic governor at present, you wouldn't hear a peep from them.
And look at the math they used: If two-thirds of Missourians don't know how the plan works, how can the majority of Missourians legitimately disagree with the plan, even if those polled actually said that? Maybe the answer to having more Missourians support the plan is to properly educate them about it. That's certainly what I tried to do when I was a civics teacher in high school.
No, any time a Republican proposes a method to democratize anything, including the Missouri Plan, you need to hold onto everything you value, including your rights to have common citizens well-represented on the committee that recommends judicial appointments. If you agree to anything short of that, you're just playing into the hands of these imperialists, who would completely eliminate citizen involvement if they could.
There is one agenda and one agenda only. The republican party has declared war on the judiciary and spin every decision which doesn't go their way as "judicial activism".
This is not a situation of judges legislating from the bench . . it is a case of the legislature and governor (president and congress) being unable to do their jobs and blaming it on the one branch of government that doesn't decide issues based on the latest poll.
The whining is getting old
We need to end the so-called "Missouri plan" as soon as possible. We're getting more ultra-liberal hippie judges on the bench than ever before.
Why doesn't a common sense judge like Bill Syler or Ben Lewis ever get elevated? Because they don't follow the liberal party line that the commission requires.
Let's retire this piece of junk once and for all.
First of all, the Missouri Supreme Court Justice is required to be a member of the bar. (Mo. Const. Article V, Section 21)
The Missouri Plan is flawed. The committee may be partisan, even if they don't want to admit it. The Governor is the highest ranking member of a political party in the state. If the Governor doesn't get the selectee that he wants, he just asks for more candidates, as he has done recently.
Once that judge is selected, they are retained by voters. The vote for retention is not made by informed voters. I wouldn't be surprised that if an exit poll was taken, greater than 95% of the voters would know nothing about the judge they just voted to retain.
In 1987, 47 years after the Missouri Plan was adopted, the Missouri Supreme Court created a rule that would hide any complaints filed against judges that the Commission on the Removal Retirement and Discipline of Judges decided not to formally pursue.
The Commission on Removal, Retirement and Discipline of Judges is made up of two judges (appointed by their peers - I guess your peers can know who will watch out for you), two attorneys (appointed by the bar - another way to protect the judges. These attorneys may want to be judges in the future) and two citizens (appointed by the governor - we currently have two women in this position) I'm sure that these two women are very nice, but I am unable to find anything that would endorse them for this position. It takes 4 of the 6 members to agree that a complaint has merit before they will initiate a formal investigation.
What if we made up a dispute resolution committee for television repair complaints? Let's comprise it of two TV repair shop owners, two TV repairmen, and two people not associated with the TV repair business.
If you have a complaint, you file it with the commission. If four out of the six members don't find a reason to pursue the complaint, it is dismissed and not available for public review.
Do you think the judges and lawyers on the C.R.R.D. have any higher ethics than the TV related people proposed for the TV complaint commission? I don't.
The Missouri Plan when combined with the Commission on the Retirement, Removal, and Discipline of Judges just doesn't work, at least not for anyone that actually thinks.