Controversy not likely as balance tilts on high court

JEFFERSON CITY, Mo. -- When a vacancy opens on the U.S. Supreme Court, the nomination and confirmation process is closely watched nationwide and heated debates over judicial ideology are at the forefront.

Openings on the Missouri Supreme Court, however, tend to be filled with little controversy or rancor and with scant public interest outside of the legal community. Indeed, recent speculation over whom the governor would name to the State Highways and Transportation Commission was more widespread than that over an impending court opening.

When Judge John C. Holstein, a Republican appointee, retires from the state high court March 1, he will be replaced by a judge selected by Gov. Bob Holden, a Democrat. The change will shift the seven-member court from majority Republican members to majority Democrats.

While such a scenario would be significant at the federal level, Holstein's departure will have much less an impact on ideological bent of the Missouri court, according to court observers.

Merit over partisanship

One reason for contrast between the state and federal benches, said University of Missouri law professor James Devine, is that the state Constitution establishes a system by which judges are chosen, "at least in theory, on a merit basis."

Whereas a president can nominate whomever he wants for the federal court with the candidate going through an often highly politicized confirmation process in the U.S. Senate, a Missouri governor is limited in his choices and lawmakers are kept out of the picture entirely.

A seven-member commission screens applicants and then names a panel of three finalists from which the governor must make his choice. Because of the restricted pool, a governor isn't assured of the opportunity to select someone who closely matches his political and legal views.

"A governor does not have the right to go out and pull a political crony and put them on the court," Devine said. "The court plan does serve to require merit."

For appellate courts, including the high court, the nominating commission consists of three lawyers elected by the Missouri Bar, three lay people picked by the governor and a sitting Supreme Court judge, by tradition the chief justice.

Evaluated as they see fit

Selecting the nominees to replace Holstein will be Chief Justice Stephen N. Limbaugh's first chance to have a hand in picking a colleague since taking over leadership of the court in July.

Limbaugh, a Republican appointee, said that aside from the constitutional requirements that a judge be 30 years old, hold a law license and meet citizenship criteria, the commission is otherwise free to evaluate candidates as members see fit.

Limbaugh said court applicants tend to be the cream of Missouri's legal community, making winnowing the field of 30 or more to three finalists difficult.

The commission will interview candidates Feb. 18-19 and submit their nominees to the governor shortly thereafter.

While court rules allow the public to submit comments to the commission regarding an applicant, Limbaugh said he doesn't anticipate Holden will pressure members to ensure a certain person makes the cut.

"I don't ever expect the governor to say or do anything," Limbaugh said.

Jerry Nachtigal, Holden's spokesman, said the governor trusts the commission to provide quality nominees and won't weigh in.

Process 'not bad'

However, Dr. Peter Bergeson, chairman of the political science department at Southeast Missouri State University, said a governor can influence the process.

"Nonpartisan doesn't mean not political," Bergeson said. "To assume it is going to be sanitized from politics is foolhardy. But it is not bad how the process works. For the most part, it works well."

Often cited as an example of gubernatorial influence is Republican former Gov. John Ashcroft's 1985 appointment of Judge Edward D. Robertson Jr.

At that time, Robertson was 33 years old, young for member of the Supreme Court, and had no judicial experience at the state level. He was, however, Ashcroft's chief of staff. Ashcroft critics levied charges of cronyism regarding Robertson's selection.

However, law professor Devine said Robertson, who is no longer on the court, enjoyed a distinguished tenure, showing that the selection system works.

"The Robertson appointment, while controversial at the time, turned out to be a pretty good one because he was a very good judge," Devine said.

Political splits rare

By the time Ashcroft left office in 1993, he had completed the rare feat of naming all seven court members. With Democrats controlling the Governor's Mansion ever since, the political balance of the court has steadily shifted.

However, the increase in Democratic appointees hasn't resulted in a pronounced ideological shift on the bench.

Though the court doesn't keep score of dissents, its decisions are unanimous more often than not. Dissenting opinions tend to come from one or two judges who differ with the majority on a legal point. Divisions along party lines are rare.

"The Missouri Supreme Court is not as politicized, and debate and discussion is not framd along ideological grounds, regardless of who is there," Bergeson said.

mpowers@semissourian.com

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