Why I support the Non Partisan Missouri Court Plan

On June 23rd, 2012, posted in: Posts by

 It was the satirist H.L. Mencken who said that “democracy is the theory that the common

people know what they want, and deserve to get it good and hard.” I’m more optimistic than
the famously cynical Mencken about the intelligence of my fellow citizens, and, as someone
who grew up elsewhere but is now proud to call this City and State home, I have always been
impressed that Missourians’ reputation for stubbornly forming their own opinions is well
deserved. This healthy skepticism will come in handy this November, when Missouri voters will
confront a proposed amendment to Missouri’s constitution that would change how appellate
court judges are selected. This constitutional amendment, which supporters are cleverly
but misleadingly characterizing as a “reform,” would replace the system that has worked
successfully for appointing Missouri appellate judges for more than 70 years with a scheme
that would allow a governor to handpick appellate judges without any oversight. I’m referring,
of course, to SJR51, which claims to be a reform of the Missouri Nonpartisan Court Plan’s
Appellate Judicial Commission, but in reality would destroy it and make the governor’s power to
appoint judges just another political plum to award to supporters.

First, some background. Tired of the harmful effects of party politics on judicial elections,
Missouri voters in 1940 approved the “Missouri Plan,” a constitutional amendment that replaced
judicial elections for appellate judges, as well as lower court judges in the urban areas of Jackson
County and St. Louis City, with an Appellate Judicial Commission that makes recommendations
to the governor (The Missouri Plan has been expanded since to encompass suburban Kansas
City and St. Louis, as well as Greene County). Under the Missouri Plan, whenever there is
an opening on the Missouri Supreme Court or one of Missouri’s three intermediate Courts of
Appeal, a non-partisan seven-person Appellate Judicial Commission reviews applicants and
recommends a slate of three candidates to the Missouri’s governor, who alone has the final
say. The Appellate Judicial Commission is comprised of the Chief Justice of the Missouri
Supreme Court, three lawyers elected by the Missouri Bar (the mandatory bar association for all
of Missouri’s lawyers), and three non-lawyer selected by the governor. The Chief Justice of the
Missouri Supreme Court is also chairs the Appellate Judicial Commission for the duration of his
or her two-year term as Chief Justice; all other members have staggered, six-year terms.

The staggered six-year terms are an important feature of the Appellate Judicial Commission
because they mean that any given governor inevitably will have judicial candidates
recommended to him by commission members selected by his or her predecessor. For instance,
although Gov. Jay Nixon is a Democrat, two of the three current, non-lawyer members on the
Appellate Judicial Commission were chosen by his Republican predecessor, Matt Blunt. The
beauty of this system is that it forces bi-partisan cooperation and involves multiple stakeholders
— lay members of the community, practicing lawyers who are uniquely qualified to assess
candidates’ legal reasoning and judicial temperament, and, of course, the governor, who is
accountable to voters — without overly politicizing the process seen in states that have direct
election of appellate level judges. In fact, the Missouri Plan works so well in minimizing politics
in appellate judge selection that similar merit-based plains have been enacted in more than 30

SJR51 would change all this by giving the governor the ability to pack the Appellate Judicial
Commission with his or her own supporters, who would be sure to recommend for formal
approval the governor’s preferred candidate. At first blush, giving the governor an unfettered

right to select judges may sound reasonable, but unlike the federal system in which the
president’s, judicial nominees must be approved by the U.S. Senate, the governor’s choices are
not subject to legislative approval thereby making the moderating influence of the Appellate
Judicial Commission an important check and balance. SJR51 would make a sham of the
Appellate Judicial Commission by expanding the number of the governor’s appointees from
three to four and by shortening the terms from six years to four so that a governor could appoint
a majority of the Appellate Judicial Commission’s members — four out of seven — within two
years of his or her election. The governor’s four appointees would no longer be prohibited
from being lawyers, as is currently the case. This will all but ensure the appointment of a
certain type of lawyer who is both a connected insider and a partisan eager to do the governor’s
bidding. SJR51 would keep the Appellate Judicial Commission at seven voting members by
removing the Supreme Court Chief Justice as a voting member and replacing him or her with an
essentially meaningless spot for a non-voting retired judge.

Critics of the Missouri Plan claim that the current process is dominated by lawyers, that it lacks
accountability to average Missourians, and that it is “elitist.” The last criticism is nothing
more than a traditional, right-wing dog whistle designed to distract from the truth and stir voter
resentment long enough to get people to vote for SJR51, which actually would lead to those
things is enactment would purportedly prevent: domination by lawyers, lack of accountability
and elitism. I could tell you that all these criticisms of the Missouri plan are false, but you don’t
have to take my word for it. The best arguments against SJR51 are found in the measure itself,
which does nothing to address the supposed problems with the Missouri Plan but would do much
to create them.

Interestingly, support for SJR51/the Missouri Plan is the rare issue these days that does not break
neatly along Democratic/Republican party lines. To be sure, opponents of the Missouri plan
and supporters of SJR51 are overwhelmingly Republican. However, a number of prominent
Republican lawyers support the Missouri Plan and oppose SJR51, chief among them Judge
William Ray Price, who was appointed by former Gov. John Ashcroft and recently submitted his
resignation after 20 years on the Missouri Supreme Court. As Judge Price told the Post-Dispatch
after submitting his resignation, “”Political pressure for result-oriented decisions has increased.
People want to achieve in court what they are unable to achieve in the legislative process. They
increasingly want to draw us into their world.”

By “their world,” Judge Price means “the political world.” In other words, contrary to the
lofty claims of the supporters of SJR51 that the constitutional amendment will improve the
accountability and quality of Missouri’s appellate judiciary, the real difference of opinion
is between people who oppose SJR51 because they know how harmful it will be to the
independence of Missouri’s appellate judges and those who favor the constitutional amendment
for exactly that reason.

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