There is a problem with Missouri’s Nonpartisan Court Plan. Wealthy and well-connected lawyers, particularly those who are members of the Missouri Association of Trial Attorneys, are allowed carte-blanche access to the selection process while ordinary citizens are shut out by a commission that meets behind closed doors. These lawyers get to have a tremendous influence on who is nominated for openings on our highest courts, but they do not make their selections based on intellectual capability or judicial integrity. Instead, nominees are chosen based on political friendships as well as ideological and financial considerations. This system no longer serves all of Missouri, just a small and very privileged portion of the legal industry.
You might ask, why should I care? Because our courts can have a dramatic impact on all of our lives on issues ranging from criminal laws to property rights to abortion. They can drastically impact the job market if they overturn laws like tort reform. In Illinois, the state Supreme Court recently overturned medical malpractice reform laws that they had passed in 2005, an action which will lead to higher insurance rates for consumers. In several other states, like Oklahoma and Kansas, courts have been the cause of massive tax increases after overturning legislative budget decisions and imposing their own priorities.
How can we fix our state’s predicament and avoid the kind of activist decisions that have become all too common? The simplest and most effective way would be to adopt judicial elections, putting the people in charge and kicking out the special interests that currently run the show.
The controversy over the process to fill our last two Supreme Court vacancies has been emblematic of a system gone awry. In 2007, one of the nominees had one of the lowest Bar ratings in the state and was involved in a lawsuit against the Missouri Bar for falling at a bowling alley, but more notable legal scholars were rejected. Later in 2008, a law professor from the University of Missouri – now a Dean at a law school – was rejected for a panel despite being highly qualified to be a judge. Many suspect that he was rejected for partisan concerns: he had been a US Attorney during the Reagan administration.
Research from Professor Brian Fitzpatrick of Vanderbilt University has shown that the Missouri Plan and similar systems are far from nonpartisan – of the approximately 50% of nominated judges who have contributed to political campaigns, 88% donated to Democrats and 12% donated to Republicans. The ideological makeup of judicial nominees does not follow the same patterns as the rest of the population because those who control the nominating commission take ideology into account when they make their selections – they do not practice nonpartisanship.
We elect our governor. We elect our legislators. We elect our local school board. Many in Missouri already elect their local judges. Why not elect all of our judges?
Judicial elections work. Going around the state talking to people about the issue, I have noticed a marked difference in public attitude toward judges in different parts of the state, all because of differences in the way judges are selected. In cities where local judges are elected, people know their judges. Judges get out and become part of the community, going to local events and increasing their public profile so the voters know them. The voters know what they stand for, and they know who they can trust with the important decisions that are put before the courts every day. As a result, they confidently cast their ballots for those who they feel will be the best judges.
Our courts are here to serve the people, not just well-connected attorneys. A system of direct involvement and democratic legitimacy will give us an impartial judiciary. The current system is marked by corruption and voter apathy.
Unfortunately, the Missouri Plan has forced our highest courts down the wrong path. Elite lawyers and a select few well-connected citizens are allowed to control the judicial selection process while the average voter is left with little say over who is nominated to our highest courts. We are told to trust the commission’s judgment for the sake of an “independent” judiciary, though these commissioners really just want to make sure they are allowed to keep their power over the judicial selection system without interference from ordinary Missourians.
Ask yourself: Who should be in charge of hiring and firing judges? I would submit that the people of Missouri should have control, not a group of unelected and unaccountable commissioners.