The Missouri nonpartisan court plan: the least political method of selecting high quality judges.

AuthorStith, Laura Denvir
PositionSymposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

    According to Justice Steven Breyer, "the reputation and the reality of the fairness and effectiveness of the American judicial system are in the hands of the states." (1) In the laboratory of American democracy, each sovereign state has the freedom to design the method by which members of its judiciary are chosen. The unique history, culture and experiences of each state have led to the adoption of a variety of systems to select judges. These methods generally fall into one of three categories: contested election, political appointment, or merit selection.

    As discussed in Section III of this Article, Missouri was the first state to have direct experience with all three of these methods of judicial selection. When Missouri first became a state it adopted the gubernatorial appointive system. Political influence and cronyism soon led Missouri to amend its constitution to provide for popular election of judges. After several decades, Missourians found the electoral system, too, easily could become "captured by" moneyed, partisan interests. Tales of scandal began to abound, particularly in elections in the urban areas and for statewide office, where party bosses held sway. (2)

    In 1940, the citizens of Missouri adopted, by initiative petition, the Missouri Nonpartisan Court Plan for selecting judges. This was the first meritselection system in the country, and it has been described as Missouri's "gift to the art of government." (3) It initially applied to all appellate courts, the supreme court, and circuit courts in St. Louis City and Jackson County (home to Kansas City). It since has been expanded to include the circuit courts of four of Missouri's other large counties. (4)

    In evaluating the Missouri Nonpartisan Court Plan--indeed, when evaluating any form of judicial selection--it is crucial to keep in mind the role of the judicial branch in our system of government. In this Article, we begin by describing in Section II the unique role that the judicial branch plays in American democracy. Next, Section III discusses the history of judicial selection in Missouri to illuminate the road by which the state came to merit selection. Finally, Section IV discusses how the Missouri Nonpartisan Court Plan, in its present structure and operation, is well suited to further the inherently impartial nature of the judicial branch. The plan draws the best elements from systems of judicial appointments and judicial elections: It provides the executive with the ability to choose from among three highly qualified candidates to fill judicial vacancies--candidates first screened for merit by a selection commission and then voted up or down by the voters before they serve their terms as judges. This approach precludes the control by interest groups, and the millions of dollars in campaign contributions, that have characterized contested statewide judicial elections over the last decades. At the same time, because it selects judges based principally on merit for a limited term, it largely avoids the overt political and interest-group influence (or attempted influence) that seems to dominate the federal method of selecting judges, particularly for openings on the United States Supreme Court, while providing greater accountability.

    Nonetheless, a small but vocal group of critics has argued that there are problems with selecting judges based on merit. Some suggest that judges should be popularly elected. others suggest that judges should be selected by using a federal type of appointment by gubernatorial choice, but without the essential protection from political influence provided by life tenure. Many would choose judges because they reflect particular viewpoints--some suggest the view of the majority, while others suggest the judges should reflect the view of whatever political party happens to be in power. As will become evident, as levied against the Missouri Nonpartisan Court Plan, these critiques lack any foundation in the actual judicial selection system in place in Missouri.

    This Article also should allay the concerns expressed by my symposium co-panelists, Brian Fitzpatrick and Stephen Ware, in their articles published in this issue. Professor Ware believes an element of populism should be retained as a part of judicial selection but at the same time concludes that gubernatorial appointment is to be preferred over popular election because of the latter's flaws. (5) He rejects merit selection as an alternative because, he fears, it has no populist elements. He derives this conclusion only after making a concededly conscious choice to ignore that the people of Missouri get to vote whether a nominated judge is to serve a full term on the court or later to be retained in office. Instead, he contends that this populism inherent in the retention election must be separated from the rest of the selection process. He then says that if one were to consider only the other parts of the process, then the nonpartisan plan is insufficiently connected to popular sentiment. (6)

    The elective component of Missouri's selection process cannot be separated out from the rest of the process, though, for it is an essential element of the nonpartisan plan. Indeed, although merit systems vary by state, the majority have retention elections for judges selected under the merit system, thereby retaining populist elements. (7) In Missouri, such populist principles purposely are included in each aspect of the process, while at the same time protecting the impartiality of judges by removing them from the shifting political winds of a pure gubernatorial-appointment system. For example, Professor Ware acknowledges that a Missouri judge must be retained by a vote of Missouri' s citizens before serving a second or third term in office, but he misses the fact that the person nominated by the commission and selected by the governor serves only what is, in effect, a one or two-year probationary term as judge until the voters have an opportunity to determine whether they agree with the work of the commission and the governor in selecting the judge. (8) It is only after new judges are retained (or not) by the people that Missouri's constitution provides they begin to serve their first full term as judge. (9)

    Professor Fitzpatrick, on the other hand, acknowledges that by utilizing a system that allows a mix of lay and law-trained commissioners to proffer a panel of qualified applicants the merit-selection system limits the ability of moneyed interests to influence the results of cases. (10) Professor Fitzpatrick nonetheless argues that because the organized bar is part of the selection system, it is subject to the politics of the bar. He further suggests (a suggestion for which he concedes he has no evidence) that lawyers are generally more liberal than others, and, therefore, this must create a liberal bias on the part of selection commissions. (11) As this Article's discussion of the Missouri plan makes clear, however, the organized bar has no role in the selection of judges in Missouri. Lawyers are among the commission members, for, as discussed below, their input is essential to identifying whether the applicants possess the competence and experience necessary to assume a judicial position, just as the lay members provide invaluable input as to the applicants' character and personal qualifications. But these lawyers are popularly elected by their peers, and Missouri's constitution ensures that they are chosen from each geographic region of Missouri and so reflect the broad range of its people's political views. (12) There is no internal capture of the process. (13)

    Perhaps this is why attempts to make the nonpartisan plan more political or to diminish the role of lawyers have met with no success in either Missouri's legislature--which defeated a proposal to substitute a bipartisan, politically selected commission for the nonpartisan system that has worked so well--or among its electorate, where a recently proposed initiative petition was filed with the Secretary of State but was abandoned before the signature-collecting process. In fact, Missouri's voters are moving toward a broader embrace of the nonpartisan court plan. In November 2008, the voters of Greene County--which contains Springfield, Missouri's third-largest city voted to adopt the nonpartisan plan for selection of their local judges. (14) Although Greene County is located in one of the most conservative areas of the state, it found that the popular-election system it previously had used did not work as well now that the county' s population had become larger and campaigns had become more expensive. (15)


    Regardless of how their judges are chosen, American courts are designed to fulfill a very specific role. As Alexander Hamilton said in Federalist Paper No. 78, "[I]t is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." (16)

    1. Courts Must Be Independent to Deliver Justice

      As representatives of the third and co-equal judicial branch of government, judges play a unique role in our democracy, a role that is different in significant ways from the role of judges' constitutional partners in the legislative and executive branches of government. Elected officials in these political branches run for office on platforms, promising to propose legislation and carry out their official duties consistent with their perception of the public's will and their own personal views of what is good for their state or nation and what is not--and properly so.

      But judges, to serve their role in our democracy, are different. This is because "[e]very citizen benefits from a judicial system that accurately and effectively addresses conflicts in a neutral forum." (17) Judges are not supposed to make promises about how they will...

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