Did You Know… Non-Partisan Selection Of Judges Remains Under Attack?

I have written before about efforts of powerful interest groups and political parties to "buy" or at least control judges. [Should Justice Be For Sale In Missouri?] Heavily financed special interests attempted last year to gather enough signatures for a ballot initiative to inject politics back into Missouri’s selection of judges. They failed. Missouri citizens rejected the idea of justice beholden to high-dollar contributors rather than to the rule of law.

But the attacks keep coming. The latest from Carrie Severino at the National Review [link coded "nofollow"]. Her article misrepresents the history, purpose, and effect of the Missouri Plan and imagines a grand conspiracy of Marxists, leftist, and nefarious politicos to inject political agenda into judicial selection (by removing judicial selection from actual politics).

Let me address some of her more outrageous accusations.

(1) Mo Plan designed by Marxists to place control of judiciary in the hands of an elite few.

Incorrect. The history of the Missouri Plan as documented on the Supreme Court’s own web site confirms that the Missouri Plan was adopted precisely because selection of judges under the former politically based plan was in the hands of an elite few, namely notorious "Boss Tom" Pendergast, who ran the Democratic party in Missouri during the 1920s and 30s. The Missouri Plan was designed specifically to wrest control of the judiciary out of Democratic political control by removing politics from the equation. The plan allowed judges to be selected on merit rather than by political expedience or favoritism.

(2) Selection of Judges is Controlled by the Plaintiff’s Trial Bar.

Incorrect. The appellate judicial commission is comprised of seven members. The commission is chaired by the Chief Justice of the Supreme Court of Missouri (a position that rotates among sitting Supreme Court Judges every 2 years); three members appointed by the Governor (whether Republican or Democrat); and three members elected by the lawyers of the state (including those representing business, prosecutors, criminal defense attorneys, family law specialists, corporate in-house counsel, and yes, even those representing injured plaintiffs).

It should be noted that, of the three political appointees currently on the appellate judicial commission, two were appointed by Republican governor Matt Blunt while the third was recently appointed by Democratic governor Jay Nixon.

(3) The American Judicature Society is a left-ist George Soros controlled organization.

Incorrect. Now, I must admit, I had never heard of the AJS before reading Ms. Severino’s piece. However, a quick review of its site and leadership suggests she is simply wrong. It is true that Judge Teitelman serves on the AJS board. So does Jon Comstock, a member of Wal-Mart’s Legal Department since 1994, and Thomas Leighton, a former Navy JAG officer and current Vice-President at media and publication giant, West Publishing, a Thomson Reuters business. These guys [including Judge Teitelman] hardly seem like Marxist politicos trying to undermine an independent judiciary.

(4) Nominating commissions "jam governors with nominees they would never choose themselves".

Severino might have a point with this one. But, then, is that not the purpose of a non-partisan, merit-based judicial selection plan? I would assume that, more often than not, the most-qualified applicant may not be the most politically expedient applicant. And that is the point, the purpose, and genius behind non-partisan, merit selection of judges.

Tellingly, Severino failed to note that two of the three politically appointed members of the appellate judicial commission were appointed by Republican Governor Matt Blunt.

Political winds shift. It may take years or decades, but they shift. States with Republican governors or legislatures will eventually have Democratic governors and legislatures (and vice versa). But the judiciary is supposed to be above the political fray. The judiciary is bound to the rule of law and sworn to uphold justice regardless of party-line, special interest, or campaign contribution. That is point and the purpose of merit selection of judges.

Here’s The Rub

Severino criticizes the judicial panel selected by Missouri’s Appellate Judicial Commission. But, notice, Severino attacks the panel for political reasons. She does not attack the panel’s qualifications; she attacks the panel’s perceived political affiliation. (A WSJ op ed piece cited by Severino similarly criticizes the plan based on politics in describing the panel submitted to then Republican Governor Blunt a choice between what WSJ described as a more-qualified liberal judge versus a less-qualified conservative judge.)

Severino attacks the non-partisan plan not because it failed to work, but because it did work. Severino does not attack the plan because it failed to select the most qualified judges, but because it stymied attempts to stack the courts with political appointees. Severino attacks the non-partisan plan because it is non-partisan.

We know partisan politicians and special interest groups dislike the non-partisan plan, but who supports it? It turns out a broad base of organizations with various political affiliations support the plan:

• Hon. John Holstein [appointed by Gov. John Ashcroft (R)]
• Hon. Ann Covington [appointed by Gov. John Ashcroft (R)]
• Hon. Andrew Jackson Higgins [appointed by Gov. Joe Teasdale (D)]
• Hon. Edward "Chip" Robertson [appointed by Gov. John Ashcroft (R)]
• Hon. Ronnie White [appointed by Gov. Mel Carnahan (D)]
• AARP Missouri
• Committee for Economic Development
• Defense Research Institute
• League of Women Voters
• Missouri Organization of Defense Lawyers
• Missouri Republican Attorneys for Civil Justice

Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democratic vs. Republican issues. There is enough politics in the legislative and executive branches, we should keep politics out of our courts. Cases should be decided on the fact and the law, not by partisan politics funded by special interest groups.

Update (9/13/2011):

Former Missouri Bar president, Skip Walther, published an article on Saturday in the Columbia Daily Tribune on the background of the Missouri non-partisan court plan. Though not directly responding to Ms. Severino’s attack on the Missouri Court Plan, Walther confirms Severino’s misperception of the Court Plan’s formation.

As Walther detailed, 86 civil leaders from aournd Missouri met in Columbia in 1937 to organzie the Missouri Institute for the Administration of Justice. This group devised, wrote and filed an initiative petition that voters approved three years later creating the Missouri Nonpartisan Court Plan. One of the 86 civic leaders… "from Cape Girardeau, someone named Rush Limbaugh."

"[N]omination of qualified candidates by a commission of laymen and lawyers, selection by the governor and retention, or not, by a later public vote — created a template copied in whole or in part by most other states."

[More on the Missouri Plan]

[More on your 7th Amendment Rights]

(c) Copyright 2011 Brett A. Emison