Court plan reforms are good for Missouri

On Nov. 6, Missouri voters will have the opportunity to make a modest change to the way judges are appointed to Missouri's Supreme Court and appellate courts. Currently, a nominating commission comprised of three nonlawyers who the governor chooses and four lawyers (three that the Missouri Bar elects plus one judge) picks the candidates that the current governor can appoint to these courts. The reform would allow the governor to appoint four citizens to the commission -- making a nonlawyer majority possible -- and would make a retired judge a nonvoting adviser. Lawyer-elected representation would remain unchanged.

Opponents of Amendment 3 like to portray the current lawyer-dominated court plan as immune to even minor improvements. As a lawyer, I strongly disagree.

Missouri's current court system dates back to the middle of the 20th century. Tired of overly partisan courts, Missourians enacted a new court plan that moved the state from a substantively partisan judge selection process to one that tried to remove some of the overt political pressures that campaigns produce.

Unfortunately, the structure of Missouri's judicial selection system biases strongly toward lawyers, entrusting great power to those who would practice before the court to choose what the court looks like. As The Wall Street Journal noted in 2007, "[a] democratic system of choosing judges requires a transparent process -- and accountability for those who make the choice." Unfortunately, the lawyer-selected representatives of the Missouri court plan simply are not accountable to the rest of the state.

Does a system where lawyers get to approve their judges sound like a good system for everyone else? Not to me. It is bad policy to delegate immense power to a few thousand lawyers and let them effectively build a court over time that renders justice on the other 6 million or so nonlawyer Missourians. Inmates do not get to vote on who runs the prison. Lawyers should not have preferential rights for who metes out Missouri justice.

Initiative opponents suggest the proposed amendment would inject politics into Missouri's court system. Nonsense. Politics have controlled Missouri's courts for decades, albeit behind closed doors. Instead of currying favor with several special interests, prospective judges need only to keep on good terms with the members of one interest -- the Missouri Bar. There are many fine lawyers, but I do not agree that we as a profession are better equipped to choose our referees than regular Missourians.

This reform is important because a court that is more accountable to Missourians is less likely to be beholden to today's ingrained special interests. A judicial selection process that returns power to Missourians through their representatives while removing the most salient and destructive aspects of judicial elections would add confidence to Missouri's court system. Indeed, reforms that empower Missourians to reassert majority control in their judicial system over special interests should be lauded -- by both nonlawyers and members of the Bar.

Missouri's court plan is far from perfect and needs reform. This initiative is a step in the right direction.

Patrick Ishmael is a policy analyst at the Show-Me Institute, which promotes market solutions for Missouri public policy.