The essentials and expendables of the Missouri plan: the 2009 Earl F. Nelson Lecture.

• Author: O'Connor, Sandra Day
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

This speech was presented by Sandra Day O 'Connor at the University of Missouri School of Law on February 27, 2009. It is the 2009 Earl F. Nelson Lecture and was part of the symposium titled "Mulling over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." The author has modified the speech and added citations for publication purposes.

It is an honor to have been asked to give this year's Earl F. Nelson Lecture, and I want to thank the University of Missouri School of Law, the Missouri Law Review, and Dean Lawrence Dessem for the invitation. I am conscious of the history of this lecture series, which started in 1955 and can claim a number of Supreme Court Justices, accomplished jurists, academics, politicians, and public figures as speakers. (2) I am happy to join their ranks. And having seen the list of past speakers, I noticed that there were a couple of years where two speakers shared the podium, so I appreciate you trusting me to give this year's lecture by myself.

We are here to discuss a matter of importance to me. The question of how we choose our judges, whom we entrust to uphold and interpret our laws, speaks to foundational principles of our judiciary and, indeed, our nation. But it is a question that our states have been unable to answer with a unified voice. While our federal judges are selected through presidential appointment, by and with the advice and consent of the Senate, the states of our nation have reached no consensus regarding how to select judges. Some states elect their judges through partisan elections, while others use nonpartisan elections; some states use legislative or gubernatorial appointment, and some of those states use judicial nominating commissions to help the appointment process. Most states are not of one mind and use some combination of these selection methods. (3)

I do not doubt that the various methods of judicial selection are all guided by the same goal: an impartial administration of the law through judges who follow the law. Most of our disagreements focus not on whether we share these goals but on how best to achieve them. These disagreements are not likely to be resolved today, so I will be modest in my ambitions for this speech. I will focus on Missouri's special role in this debate, both as a leader of judicial independence and as a target for those who would marginalize it.

The first part of my speech will focus on the shared history of our nation and of Missouri. Both this nation's and this state's careful guarding of judicial independence can be traced back to the grave abuses each experienced in the past. These histories provide cautionary tales and provide a backdrop for understanding the values that we sought to protect in implementing our current methods of judicial selection.

My second objective is to stress that, as instructive as this past is, we are at a new and critical point in history. While the debate about judicial selection has persisted for centuries, the climate has changed dramatically. In states that elect their judges, the expense and volatility of judicial campaigns have risen to obscene levels. Money is pouring into our courtrooms by way of increasingly expensive judicial campaigns. Litigants are attempting to buy judges along with their verdicts, and the public's trust in our courts is rapidly deteriorating as a result. (4) I believe these new circumstances should reorient and reinvigorate the debate over judicial selection.

My third and final goal is to discuss, in light of these histories and expanding threats, what we can do better to protect the independence and reputation of our judiciary, across the nation as well as here in Missouri. While I favor a merit-selection system, which has become synonymous with Missouri, (5) it is important to remember that the plan's value relies entirely on its premise of removing, or at least diminishing, (6) the politics in judicial selection. If it fails to do that, it fails on its first principles. Thus, even states that use a merit-selection system to select judges should scrutinize their plans to preserve what is essential to judicial independence and reform those aspects of the plan that are expendable and might otherwise endanger the whole.

As you already know, in the 1760s there were extraordinary tensions over whether the colonists could be taxed by a British Parliament in which they had no representation. The colonial sentiment of that time is still emblazoned on our license plates in Washington D.C., which read, with a sense of derision, "taxation without representation." (7)

But colonists found some refuge in the colonial courts. While the courts were generally unwilling to defy Royal Acts or Acts of Parliament openly, they would sometimes obstruct them by refusing to assist those charged with executing them. (8) The British government responded in 1772 by funding colonial judges' salaries through revenues collected under the authority of the Townshend Revenue Act of 1767, (9) which might be most familiar to you as enacting a duty of three pence for every pound of imported tea. This gave colonial judges a monetary interest in enforcing the Townshend Acts that many colonists believed were beyond the authority of Parliament. (10) It also removed one of the colonists' only means of controlling public officials, namely, by controlling their salaries.

Responding to the British attempt to control judges' salaries, along with the fact that judges would only serve during the King's pleasure, the Boston Committee of Correspondence had this to say in a 1772 letter titled "A List of Infringements and Violations of Rights": (11)

This will if accomplished compleat our slavery. For if taxes are raised from us by the Parliament of Great Britain without our consent, and the men on whose opinions and decisions our properties liberties and lives, in a great measure depend, receive their support from the Revenues arising from these taxes, we cannot, when we think on the depravity of mankind, avoid looking with horror on the danger to which we are exposed.... [O]ur Judges hold their Commissions only during pleasure; the granting them [sic] salaries out of this Revenue is rendering them dependent on the Crown for their support. (12) The Committee's outcry contributed to rebellions, such as the Boston Tea Party the following year, which in turn helped spark the Revolution. (13) The Declaration of Independence later echoed the same sentiments when it listed as one of the primary grievances against King George III that he had "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." (14)

This history is somewhat ambiguous with regard to the importance of an independent judiciary, because one could fairly conclude that the colonists' complaint was not that judges were being controlled by politicians but that they were being controlled by politicians an ocean away rather than those at home. But when it came time to draft a Constitution, it became evident that our Founding Fathers sought to protect judicial independence from the whims and impulses of a majority here at home as well. The Constitution, of course, protects our federal judges with life tenure, at least during good behavior, and a salary which cannot be diminished. (15) And when, at the Constitutional Convention, John Dickinson of Delaware proposed that federal judges might be removed by a more expedient means than impeachment--"that they may be removed by the Executive on the application by the Senate and the House of Representatives"--the other delegates decried it as "fundamentally wrong to subject judges to so arbitrary an authority" and "weakening too much the independence of the Judges." (16) His proposal received only one vote. (17)

I mention this history to draw a simple point that is often drowned out in debates over how we select our judges. The Founders of our Nation, having narrowly escaped the grasp of a tyrannical government, saw fit to render federal judges independent of the political departments with respect to their tenure and salary as a way of ensuring they would not be beholden to the political branches in their interpretation of laws and constitutional rights. This revolutionary promise--that our government would be restrained internally from the tyrannical and impulsive abuses of power that it might otherwise levy against its constituents (18)--can only be fulfilled if the judicial power is kept distinct from the political branches. otherwise the promise can be broken with impunity. This idea set America apart, allowed it to endure, and has been emulated around the globe.

I do not think that I can make a stronger argument than history has already made on behalf of an independent judiciary. Those clamoring for a judiciary that acts merely as a reflex of popular will and those who would offer you the false choice between an independent and an accountable judiciary shoulder the burden of rebutting this history and the long-held ideal that a judge's sole concern must be the law. As we discuss methods of judicial selection, our first question should be to ask how closely each method follows these constitutional principles that have allowed our judiciary to flourish for centuries.

Missouri, like every state that entered the Union before it, appointed its judges when it was first admitted as a state in 1821. (19) But this condition was short lived. In the following decades a wave of populism, ushered in with the help of President Andrew Jackson, gripped the nation, and judicial elections gained prominence. (20) Many people felt that appointive systems had allowed governors and legislators to award judgeships based on party loyalty rather than on legal ability, judicial temperament, or fair mindedness. So, President Jackson and many Americans became enamored with electing judges, a practice that still sets us apart from the rest...