PRINTObjections aplenty
It’s a hung jury for the Missouri judicial selection process
Photo illustration by Taryn Wood
Democrats want to keep the status quo, Republicans want change and certain special interest groups want a whole different playbook.
December 10, 2009 | 12:00 a.m. CST
A bulwark of conservatism, Rush Limbaugh Sr. helped craft the Missouri Nonpartisan Court Plan back in 1940. Nowadays, the winds have shifted direction. Democrats want to keep the long-standing process untouched, but some Republicans aim for change. And while it escapes the attention of folks who don’t revel in judicial smack downs, this debate still rages under the roof of the Missouri House.
The Missouri Plan is a merit-based judicial selection process, which more than 30 other states have adopted. In the plan, a commission made up of a judge, lawyers and citizens proposes a panel of candidates to the governor for judgeship to the Supreme Court, the three district courts and some urban circuit courts (not including Boone County). The governor then picks from the panel or abstains and lets the commission decide.
Three proposals have emerged in this debate over changing the status quo: Missouri can make small changes to the existing plan through a proposal such as House Joint Resolution 10 (see graphic on Page 27), adopt the federal system in which executives such as the governor would make the appointments, or revert to having statewide judicial elections. House Republicans voted in support of the first proposal. A special interest group — Better Courts for Missouri, led by James Harris, previously a staffer for former Gov. Matt Blunt — started pushing for the latter two proposals after HJR 10 stalled in the Senate.
House Republicans, such as HJR 10 sponsor Rep. Stanley Cox of Sedalia, and Better Courts are hoping for less lawyer and more citizen input in a process that has greater transparency. To this end, Cox, a lawyer and hopeful game-changer, has sponsored House resolutions for the past two years that would slightly alter the current plan.
Harris says that lawyers have too much control over the current system. He levies his assault at the Missouri Association of Trial Attorneys for overloading the commission with its members. “They’re our courts,” he says. “The courts don’t belong to a bunch of ambulance chasers.”
But MATA sees it another way: “The over-emphasis on the makeup of the three attorney members and MATA’s involvement is being used to distract the discussion away from what is really going on — a fringe group trying to inject politics into our judiciary,” said Executive Director Sara Schuett in an e-mail.
Alongside MATA, Missouri Bar President Skip Walther (page 12) and many lawyer groups across the state have backed Democrats and refused to negotiate reform. They say the existing plan is the closest the state will get to stripping politics from the judicial selection process.
“If it’s not broke, don’t fix it,” says Rep. Chris Kelly, a Democrat for Columbia. Changes would make the plan more political — the antithesis of the original plan’s goals — he says.
Democrats cried out against the House resolution, but it doesn’t come close to matching their outcry over Better Courts’ more recent proposals that would dramatically overhaul the Missouri Nonpartisan Court Plan.
The first proposal is similar to the federal model but lacks lifetime appointments for judges. That makes the process ripe for politicization, opponents argue, as judges could come and go with the changing Republican and Democratic tides.
Liberals also shudder at the idea of having statewide judicial elections as outlined in the second proposal. They say it would only result in wasteful campaign spending and the sorts of political attacks that leave much of the public turning off the television in disgust. Walther recalls an ugly contest for a spot on the 2004 Illinois Supreme Court. “Over $5 million was spent between two candidates for one position, and by the end of the race, both were accusing each other essentially of being child molesters,” he says.
Rep. Cox is quick to point out that HJR 10 made moderate changes to the existing Missouri Plan as opposed to altering it completely. But Democrats aren’t buying the argument.
Changes include making public the names of all applicants for judgeship. But Randy Scherr, executive director for the Missouri Organization of Defense Lawyers, says this hurts the applicant pool. He says qualified lawyers might not apply for fear of their firm finding out and questioning their reliability. The change could also encourage groups to run opposition ads against individuals and tempt unqualified lawyers to apply just to get their name out, Scherr adds.
Another concern is that increased governor control could weaken the judges ultimately selected, Walther says. Cox’s resolution allows the governor to send back the first panel of potential judges. The commission would then send another panel, and if the governor still doesn’t like what he sees, the commission must pick from the second panel.
“You’d be getting second-string candidates instead of first-string candidates,” Walther says — or as Scherr calls them, “the B team.”
The resolution would also change the make-up of the committee by adding another citizen member in an attempt to balance out the lawyers, Cox says. But the Bar says lawyers know best and that there’s no need to shake things up by watering down the commission’s legal know-how. Walther says lawyers on the commission are anything but politically motivated. “If there was a hall of fame for lawyers in the state of Missouri, these lawyers would be among the first candidates,” he says.
So House Republicans want change, the lawyers and Democrats don’t, and Better Courts for Missouri wants a whole new playbook. But what do you get when you cross a House Republican with a lawyer and president of the St. Louis County Bar? You get Rep. Tim Jones, who wants yet a different future for the Missouri Plan: He would like to see more talk between the two main camps. He abstained from the floor vote for HJR 10.
“I am disappointed in the Bar for not even wanting to discuss a compromise,” he says.
Yet both sides are unflinching and don’t look like they’ll be coming to the table anytime soon. “It’s interesting that Republicans now rail on a system that they were able [to use] to so successfully place such competent and professional attorneys in the Supreme Court,” Walther says. “It’s mind-boggling.”
But, ultimately, any changes will come to a vote by citizens. So, you be the judge.
Twitter
Facebook
