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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