Examining nonpartisan Judge selection- part 1
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Examining nonpartisan Judge selection- part 1

Date: November 16, 2007
By: Sarah D. Wire
State Capitol Bureau
Links: The companion story.

JEFFERSON CITY - Missouri's nonpartisan court plan was created almost 70 years ago and now serves as the model for how many states pick judges.

But after Republican criticism of the process used to pick Missouri's newest Supreme Court Judge during the summer, groups on both sides of the issue are gearing up for a possible fight to change or abandon the system.

The most direct challenge to Missouri's nonpartisan court plan comes from a conservative activist organization, the Federalist Society, which is seeking signatures to put repeal of the system on the 2008 statewide ballot.

The nonpartisan court plan was approved by Missouri voters in 1940. Supporters argue it is a way to avoid political beliefs being a factor in the selection and retention of judges. 

Judges under the system are selected by a nonpartisan process and do not run for retention as partisan candidates. The system covers only the state's appellate-level courts and circuit courts in the state's two urban areas.

It has been hailed by political scientists as a means to remove partisan politics from the court system and has been used as a model, in one form or another, by 30 other states.

Some opponents of the plan, however, want to modify it so the governor or state legislature plays more of a role in judicial selection. 

In the 2007 legislative session, three bills were introduced in the state House, but none passed. Two of those bills will be reintroduced in the upcoming session in some form.

"That's what we had in Missouri in 1820 and it didn't work," said Former Chief Justice Chip Robertson. Robertson is co-chairman of Missourians for Fair and Impartial Courts. Six former Supreme Court Justices recently joined the group in order to protect the current plan.

During the last legislative session, Rep. Jim Lembke, R-St. Louis County, sponsored a constitutional amendment that would return Missouri's system to a system similar the federal approach in which the president nominates judicial selections who must be confirmed by the Senate. Under Lembke's plan, the governor would pick a judicial nominee who would be subject to Senate confirmation.

Currently, the governor's choice is restricted to three nominees selected by a nominating commission.  The commission is named by judges, lawyers and the governor. If the governor does not choose a nominee within sixty days the commission makes the selection. The Senate has no role in the process.

Lembke said he plans to introduce a similar bill for the 2008 session.

"That way all three branches would be involved in that process and the other two would serve as a check," Lembke said. "Currently, the Missouri Bar Association has too much power."

Lembke's approach would keep the non-partisan retention vote required for a judge to stay in office.  But it would eliminate the nominating commission who selects the three candidates for the governor's selection.

Lembke criticized the domination of attorneys on the nominating commission. With one third of the panel selected by judges and one third selected by attorneys, lawyers are assured of a majority vote.

But Robertson said the federal system is the cause of the publics feelings about activist judges.

"I don't know why anyone would want to emulate a plan that doesn't work," Robertson said. "It's kind of like saying, 'I'm jumping off the Empire State Building and I'm the guy who's not going to fall.'"

Rep. Ed Emery, R-Lamar, introduced another proposed change to the plan last session that would have flipped the selection process so the governor would select an appointee to be examined by the Appellate Judicial Commission. He also said he plans to introduce a similar bill during the upcoming legislative session.

Emery said in the past the Judicial Commission usually nominated judges who lean politically the way the current governor does.

"Frankly, it hasn't worked so bad in the past, but this was the first time that a person from the other party had a place on that panel," Emery said. "It brings the weakness to light."

Emery said his proposed system would put pressure on the governor to choose a qualified person because the Judicial Committee hearings would be open to the public. He said because the governor is elected, and the Judicial Commission is not, so the new system would be more open to the public.

"What we have now has showed that it is impure and hard to clean up," Emery said. "This doesn't throw the baby out with the bathwater, it reverses the process so the public has more access to the chooser."

While this debate was relatively subdued during the last legislative, it got increased statewide attention when the governor's office criticized the method used to pick judges.

The governor's chief of staff, Ed Martin, repeatedly criticized the commission for not being more open in the selection process.

All meetings of the Appellate Judicial Commission are closed to the public. The commission relays only some of its information to the governor.

The governor's office, however, repeatedly asked for more information about the candidates, a request the Appellate Judicial Commission said they could not respond to because of Supreme Court rules. The governor is allowed to investigate the candidates in any way he sees fit.

Gov. Matt Blunt had nominees fill out his own 111 question survey and meet with his staff.  Eventually, Blunt met with each nominee individually.

Supreme Court Chief Justice Laura Stith said it is important for the selection process to be closed because it encourages more applicants.

Stith compared the process to how universities pick new presidents. She said some people worry about if they apply and don't get nominated, the public will think they did not have the necessary qualities.

Stith said the number of people who apply varies by the vacancy, but she was satisfied with the amount for the last process.

Part of the problem in the past, Stith said, has been that lawyers can make more money in the private sector because judicial pay has not kept up with the rest of the profession.

Blunt has spoken out for changes to the plan several times within the last year including speeches made to a group of Republican Kansas City lawyers and to the St. Louis chapter of the Federalist Society, the group attempting to change the plan in the 2008 election.  He has not,however, unveiled a specific plan.

It was in the aftermath of the administration's criticisms that the Missouri Bar and the state Supreme Court chief justice mounted a full-bore campaign to defend the system including radio advertisements and public education initiatives..

Missouri Bar President Charlie Harris said the threat to the current system, which has been in place for over 60 years, is "real and concrete."

"There is a wave throughout the country to remove fair and impartial courts," Harris said.

Harris said the opposition can be seen through recent legislative attempts to change the program.

Because the court plan began in Missouri, Harris said many people across the country are watching the state closely to see what happens.

"Many commentators have surmised that if you can bring down the leader it can create a domino effect," Harris said. "I don't personally know if that can happen."

 

 HISTORY OF THE PLAN:

  • The Missouri nonpartisan court plan began in 1848 and was revised nearly a hundred years later.
  • The plan is applied to Supreme Court Judges, court of appeals judges, and the lower courts in St. Louis city and Jackson County.
  • On the appellate level -- the Supreme Court and the state's three appeals courts -- nominees are selected by the seven-member Judicial Appellate Commission.   The commission is composed of three Missouri lawyers elected by members of the Missouri Bar, three persons chosen by the governor and the chief justice of the Supreme Court.
  • There is a separate five-member commission for each of the circuit courts under the nonpartisan court plan in the counties of Platte, Clay, Jackson and St. Louis and the city of St. Louis. Each commission is composed of the chief judge of the circuit's appeals court, two area lawyers elected by the Missouri Bar and two non-lawyers named by the governor.


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