Vacancy to give Democrats more clout on high court

JEFFERSON CITY, Mo. -- As recently as nine years ago, appointees of former Gov. John Ashcroft held all seven seats on the Missouri Supreme Court. But when Judge Duane Benton steps down in the coming days, only two of the conservative Republican's selections will remain.

Once current Gov. Bob Holden names Benton's replacement, the court's partisan split will be 5-2 in favor of Democratic appointees and give that party's nominees their greatest presence on the court in decades.

It will be Holden's third opportunity to put a judge on the high court. Although not as impressive as the two-term Ashcroft's rare feat of court stacking, three nominees in four years will allow Holden to put more of a stamp on the court than most governors.

Mary Still, Holden's spokeswoman, said he doesn't approach the nomination process with an eye toward leaving a particular legacy on the bench.

"The governor will be seeking judicial talent and integrity," Still said. "His primary concern is to make certain that all who come before the bench have the law applied fairly."

Unlike the often divided U.S. Supreme Court, partisan disagreements on the Missouri high court are the exception rather than the rule, a pair of 4-3 decisions issued Thursday along party lines not withstanding.

Healthy disagreementsBenton, who has been appointed to the St. Louis-based 8th U.S. Circuit Court of Appeals, said the occasional disagreements can be healthy. Democratic appointees claimed a majority on the Missouri court in March 2002.

"There is no question we have many more 4-3 decisions, but 4-3 decisions are not necessarily bad because a good dissent makes for a stronger majority opinion," Benton said.

On the bulk of cases, Benton said, the Missouri Supreme Court speaks with one voice.

"The public does not grasp that a tremendous percentage of our opinions are unanimous," Benton said. "We work very hard to achieve a unified position."

Whereas the federal high court frequently cobbles together positions out of multiple concurring opinions on important cases, which can make for muddy statements on the law, Benton said the Missouri court established clear majorities on every case it's decided except for one during his 13-year tenure.

The most noticeable example of a philosophical divide on the Missouri court since Democratic appointees took control has been on the death penalty. The Democratic and Republican blocs have split five times on cases overturning capital sentences or convictions. In one case, the majority found the death penalty unconstitutional for juvenile offenders, despite a standing U.S. Supreme Court precedent to the contrary. The federal high court has agreed to review the case in its fall term.

However, legal experts agree those cases shouldn't be seen as an indication the court is moving in an anti-capital punishment direction. The same roster has unanimously agreed -- both to affirm and reverse -- more times than they've divided on such cases.

Even so, a replacement for Benton who is ideologically in tune with the sitting Democratic appointees could provide a stronger statement on cases where the blocs are at odds.

Under the Missouri system, Holden can't name whomever he wants. A seven-member commission led by Chief Justice Ronnie White, a Democrat, will select three finalists from among applicants for the vacancy. Holden must fill the post from among the choices presented to him.

Holden's first two appointments were promoted from the Missouri Court of Appeals. Laura Denvir Stith came from that court's Kansas City-based western district, and Richard Teitelman from the eastern district in St. Louis.

All of the sitting Democratic appointees hail from the state's two urban centers, as does Judge William Ray Price Jr., who practiced law in Kansas City before Ashcroft put him on the court. Excluding the departing Benton, who resided in Jefferson City even before ascending to the bench, Judge Stephen Limbaugh Jr. of Cape Girardeau is the court's only outstate member.

Limbaugh said there have been geographical shifts in the court's makeup over the years but that they have had little impact.

"When I was appointed, there was not a single representative from St. Louis," Limbaugh said. "I don't think any governor makes these appointments based on ZIP codes."

Awaiting formal commissionThe widely respected Benton will resign from the Missouri Supreme Court once he receives his formal commission as a federal judge from President George W. Bush, which could come at any time. The U.S. Senate has already confirmed Benton's nomination.

Benton resided in Cape Girardeau with his family during parts of the 1970s and 1980s when he wasn't away attending school or serving in the military.

Limbaugh, who has known Benton since those days, said his colleague's boundless energy, staggering intellect and dedication to others has left a lasting impact on the Missouri court.

"He's added great luster to the institution and will do the same for the 8th U.S. Circuit Court of Appeals at the federal level," Limbaugh said.

mpowers@semissourian.com

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