April 5, 2012 08:30 AM

[What follows is my prepared testimony before the Judiciary and Civil Crimes Committee on HJR 51, to amend the way in which some Missouri judges are selected.]

I appreciate the difficulty of the task you have before you. The Founding Fathers struggled with judicial selection, too. Some wanted direct elections, some wanted Presidential appointment without legislative oversight, but all agreed that whoever made the decision should be held accountable. Benjamin Franklin jokingly suggested that we should adopt the Scottish model, where lawyers get to select judges.

But here we are. The judicial selection process in Missouri is broken, and that brokenness affects your jobs here in the legislature and, I suspects the effectiveness of the judicial branch itself.

In an April 2007 analysis of the Missouri Judicial Selection process by Bill Eckhardt and John Hilton, they conclude in part,

The current court has modified Missouri tort law to relax the causation requirement, and takes a more liberal approach to federal and state constitutional law. The court exhibits less deference to the legislature and to precedent, and has expanded Missouri’s venue rules and statute of limitations, while relaxing traditional contract law.

These trends are problematic because at the very least they require the General Assembly to take corrective action. One need look no further than this session for examples:

  • The employment law fix was prompted by cases like Daugherty v. City of Maryland Heights, and
  • The workers’ compensation reform bill deals with changes brought about by two separate court decisions – Robinson v. Hooker, and Franklin v. CertainTeed Corp
In a 2005 case, Roper v. Simmons, Justice Stith and the Missouri Supreme Court cited “the views of the international community” to invalidate a death sentence for a man who was convicted of torture and murder.

In my own home of Jackson County, Circuit Court Judge John Torrence released an admitted child molester on probation, and previously gave probation to a man who had beaten a homeless man to death. He allowed a high school drill team leader convicted of inappropriate sexual behavior with a minors to be eligible for parole after only four months, and released an admitted drunk driver who fled the scene of a fatal accident after only four months.

Are these the types of decisions with which the public and their legislators should be proud? In the federal system, judicial tenure is life long, and so the vetting process is open and thorough. US senators record their vote publicly, and those votes—and the president's nomination itself—are often grist for political campaigns. They are held accountable for their decisions.

Here in Missouri, due to high retention votes, tenure is de facto lifetime. The difference is that none of the vetting process is open, none of those doing the vetting are accountable and those who are held accountable have no real voice in the process. Governors—both Republicans and Democratic—can escape blame for bad judges by simply saying, “these are the candidates the commission sent me.”

Elections ought to mean something. But their results are not reflected in the current process. A recent analysis of judicial selection by Vanderbilt University demonstrates that under Democratic administrations, 94% of Plan nominees were Democratic and during Republican administrations, 74% were Democratic.

Make no mistake, the Missouri Plan is a political process—just not an open political process.

I have not spoken to any judges about my testimony or about reform, but I am confident that many are very aware of the bad actors in their ranks—and are likely more sickened by it than anyone testifying here today. Judges who are professional and conscientious often have more lucrative opportunities available to them after they leave the bench, while judges with less such opportunities are content to ride out their de facto life time tenure. Perhaps the public—and their representatives in the legislature—would be more amenable to increasing judicial pay if they had a say in who they were paying.

I might also ask judges if they would accept a plan in which their law clerks were chosen for them by an association of law school students in much the same way judges are chosen for us by the Missouri Bar. I doubt any would—and for good reason.

Thank you for your time and attention.

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Benjamin Franklin jokingly suggested that we should adopt the Scottish model, where lawyers get to select judges.

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