Our judges are selected behind closed doors

By 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.