Justice In Our Courts: A Fair And Impartial Judiciary

The U.S. Constitution provides for a separation of executive, legislative and judicial powers. [1]  The role of the judiciary is unique among the branches of government.  Our courts are accountable to the United States Constitution, federal and state laws, and the constitutions of the individual States.  Most citizens are in agreement that they want judges to be accountable to the law and not to special interest groups.

In 1940, in response to the increased role of politics in the selection of judges, the voters of Missouri amended the Missouri Constitution when they enacted the “Nonpartisan Selection of Judges Court Plan”.  Identified as the Missouri Plan, it has, since that time, served as a model for 34 other states.  Now that plan is challenged in Missouri by a proposed constitutional amendment that would significantly expand the role of politics in the selection of state appellate and supreme court judges.

The current “Missouri Plan” provides for the selection of state supreme court and appellate judges utilizing a non-partisan commission whose role is to review and evaluate candidates for judicial vacancies and to present the Governor with a panel of 3 candidates for a judicial position, from which the governor selects the successful candidate.  The 7 member commission is chaired by a Missouri Supreme Court judge [2], and includes 3 attorneys, elected by Missouri attorneys, and three lay members appointed by the Governor.  The lay members and lawyers serve staggered 6 year terms.  The governor selects the lay members. The commission picks 3 candidates for the judicial position.  The governor selects the judge from the 3 candidates.  A sitting governor is able, in a single term, to select only 2 lay members, giving the governor control over fewer than 1/3 of the members of the commission.  Over a period of two terms the governor has control of three appointments, still a minority of the commission.  In recent years the selection process has been modified to provide increased transparency in the selection process by providing the public significantly more information about the candidates.

On the November 6, the voters will be asked to consider Proposition 3, a proposed amendment to Missouri’s Constitution that seeks to expand the role of politics in the selection process.  Inherent in the proposed changes to Missouri’s Non-Partisan Court Plan is increased politicalization of the judiciary. The proposed constitutional amendment would remove the Supreme Court Judge from the commission and give the governor the authority to appoint 4 members of the commission, 2 immediately on taking office and two more 2 years after taking office, thus giving the governor the ability to appoint in excess of 50% of the commission in his/her first term.

There is currently no organized support for this Constitituonal amendment.  Neither Governor Nixon nor his opponent supports the amendment.  What, then, is the problem?  Elected officials who support the Constitutional amendment in Missouri also support the direct election of appellate judges.  Why you say?  Purportedly the proponents are seeking increased accountability of judges.  But to whom?

The Missouri Plan was implemented in response to efforts by political bosses to control the selection of judges, particularly at the appellate levels.  The perception was that these political bosses wanted judges who were loyal to them and not to the law.  This risk can be the same whether the perceived loss of independence results from the dominance of the governor over the selection process or the need of judicial candidates to face elections, particularly in large metropolitan areas where the cost of an election can be significant, thus requiring them to solicit the large sums of money necessary for political campaigns.

The role of our courts is to fairly and impartially enforce the laws and to do so without bias. Experience in states including Texas and Illinois suggests that the  election of appellate judges significantly changes the dynamic of the court system. The challenge associated with requiring judges to solicit significant campaign contributions and to campaign for office includes, almost necessarily, an expectation by donors that judges will have some accountability to them. How can this be a benefit to the fairness of the judicial process?  It can’t.

When you are asked to support changes to the processes by which judges are selected, ask yourself whether you would want to appear before judges who are responsible to the law, or who are indebted to one or more special interest groups.  Hopefully, the answer is quite clear.  Citizens should reasonably expect that judges are fair and impartial, responsible to uphold the Constitution and be governed by it and by other duly enacted federal and state laws, they protect individual rights and that they provide access to the judicial system.  There is no place in these responsibilities for judges who are–or appear to be–subject to the desires of any special interest.[3]

John Johnston, Past President of the Missouri Bar and strong advocate for the retention of the non-partisan court plan summed it up:  “When we select judges, we want people who will be good umpires, not players.  We want people who will set aside any feelings they have about who should or who should not win.  We want people who will apply the rules that we made as a people through our constitution, or that our elected representatives made through laws, or that our governors made through executive policies.  when any of these rules conflict, we want judges who will say that the people win, and that our most direct voice, the constitution, wins.”

Perhaps the Federalist Papers say it the best:  “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” And further: “The complete independence of the courts of justice is clearly essential in a limited Constitution…” [4][5].

Isn’t that what we all want?  I think so.

[1]  U.S. Constitution, Articles I, II and III.

[2]  By tradition, the Chief Justice sits as the chair of the appellate commission.

[3]  Experience suggests that it is in statewide and major metropolitan elections that we face the greatest challenges associated with expensive elections and the associated concerns about contributors attempting to influence judges.

[4] See our post on The Federalist Papers and the Judiciary’s Role in Government, dated Dec. 29, 2011.

[5] See our post on U.S. Role in World Affairs, Pt. 2: Courts as a Model and Trusted Protector of the Rule of Law, dated Nov. 8, 2011.


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The Federalist Papers and the Judiciary’s Role in Government

In recent election cycles, the courts have taken a bad rap.  They have been identified as elitist, activist, unpopular and even distrusted by the founding fathers.  I reminded myself it had been some time since I’d actually read the Constitution.  I decided to go “to the source” and re-read our nation’s original documents, to address at least one of the above issues, the opinions of the founding fathers about the  judicial system.  I will let the documents speak for themselves:

1)  In declaring independence from England, what complaint is made in the Declaration of Independence, signed July 4, 1776, about the relationship of King George and the judiciary?  “He [King George] has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.”

2)  How did the Constitution, adopted September 17, 1787, handle the separation of the powers of the legislative, executive and judicial branches of government?  The Constitution divides the powers of  government in separate articles as follows:

“Article I, Sec. 1:  All legislative Powers herein granted shall be vested in a Congress of the United States…

Article II, Sec. 1:  The executive Power shall be vested in a President of the United States of America…

Article III, Sec. 1:  The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. …”

3)  What are the Federalist Papers and why do we care?  They are a series of 85 essays, originally titled  Federalist: a Collection of Essays Written in Favor of the New Constitutionpublished in 1788 to gain support for the passage of the Constitution. written to promote the ratification of the Constitution.  They have also had a significant impact on U.S. Supreme Court interpretations of the Constitution.

4)  Who authored the Federalist Papers?  Alexander Hamilton, James Madison and John Jay.  Among other roles in the founding of the United States, Alexander Hamilton served as a New York delegate to the Constitutional Convention; James Madison was the fourth President of the United States, was instrumental in drafting the Constitution and was the author of the Bill of Rights; John Jay was the first Chief Justice of the United States.

5)  Do the Federalist Papers address the role of the judiciary and the separation of powers?  Yes.   Federalist # 78 focuses on the relationship between and among the branches of government and the role of the judiciary as it relates to the interpretation of the Constitution.

6)  Why did the Constitution provide for a separation of powers among the three branches of government?   In the Federalist Papers, Alexander Hamilton explains …”there is no liberty, if the power of judging be not separated from the legislative and executive powers.” “The complete independence of the courts of justice is clearly essential in a limited Constitution…. [the courts have the duty] to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

6)  Do the Federalist Papers describe the role of the judiciary in interpreting the Constitution?  Yes.  Federalist #78 explains that the “interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”  “…under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes.”

7)  Do the Federalist Papers express a distrust for the judicial branch?  No.  While the Federalist #78 acknowledges that “though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”

 8)  Why did the Federalist #78 describe the judicial branch of government as the weakest of the three branches?  The Executive branch not only “dispenses the honors, but holds the sword of the community.”  The legislature “commands the purse”.  The judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society…”

9)  What is the purpose of the provision in  Article III, Sec. 1 of the Constitution that Judges “shall hold their Offices during good Behaviour [essentially lifetime appointments]?  The Federalist Papers #78 explains that: “from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

10)  Did the founding fathers consider one branch of government to be superior to others?  No.  The Constitution was written to put the interests of the people, not the interests of government, first. The colonies declared their independence from England because of the tyranny of King George.  The separation and balance of powers is for the protection of people, rather than for some other purpose.  Federalist Papers #78 is clear that the Constitution does not  “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. Further, it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

11)  What other essays included in the Federalist Papers are of significance in determining the view of the founding fathers concerning the role of the judiciary?  Essay #1 describes the goal of the Constitution as focused on “whether societies of men are really capable or not of establishing good government from reflection and choice.” He and his co-authors along with other leaders including George Washington, believed that the Constitution represented a unique and important change in, and improvement over, prior forms of government.  Essays 4 and 33 deal with the Supremacy Clause set forth in Article V of the Constitution, but those are matters for another day!

Why haven’t I addressed the other issues raised concerning perceived flaws in the judiciary and individual judges?  It is reasonable to believe that people of good will can have differing opinions about individual judges, individual decisions and frailties in any arm of government.  I have no desire to enter that debate.  The humanity and imperfections of each of us individually and collectively are not up for debate.  But what I think is important to recognize is that the Constitutional framework was designed to include a separation of powers of the three arms of government because the founding fathers believed that it was in the best interests of the people to do so. The courts were not considered inferior or superior to the other branches of government.  The courts were, however, considered essential to the creation and fulfillment of our system of Democracy.