Once hailed as a “model for the nation,” the so-called “Missouri Plan” for selecting judges is under attack in Missouri and neighboring Kansas by legislators who say it produces a judiciary beholden to the interests of trial lawyers.
Kansas will hold a special election next year to decide whether to amend the state constitution to elect state Supreme Court justices directly, instead of using a nine-member commission dominated by lawyers. Lawmakers in Missouri have proposed a similar measure to eliminate the current seven-member commission and have judges appointed by the governor.
Missouri enshrined its judicial selection system in the state constitution in 1940 to try and insulate judges from politics. Kansas followed in 1958. Proponents say the commissions are key to advancing qualified, non-partisan judges, while critics say the commissions are controlled by trial lawyers who promote judges who interpret the law to expand business liability and drive up insurance costs.
Kobach
“It is an elitist system designed by lawyers, controlled by lawyers, and reflecting the political biases of lawyers,” Kansas Attorney General Kris Kobach said in May remarks in support of direct elections in that state. “That is why the Kansas bar fights so hard to keep it the way it is.”
It has faced mounting criticism over the years but is essential for judicial independence, said Athena Dickson, president of the Missouri Bar, in a recent statement.
Dickson
“Our judiciary exemplifies impartiality, competence, and diligence — the hallmarks of leadership in our profession,” Dickson said.
Ostensibly non-partisan, under the Missouri plan appellate judges are appointed by a committee consisting of the Chief Justice of the Supreme Court, three lawyers selected by bar members and three non-lawyers appointed by the governor. The committee submits a panel of three nominees to the governor. The governor has 60 days to select one of the nominees, after which the commission has the power to appoint a judge itself.
Judges in St. Louis and several other counties are also selected by commission, while the rest are elected. Judges selected by commission are subject to a retention vote after the first year and at the end of their terms. Supreme Court justices serve 12-year terms, while appellate judges serve for six.
Lawmakers have tried several times before to scrap the Missouri plan including in 2012, when 75% of voters rejected a constitutional amendment that would have added a representative of the governor to the appellate selection committee. Under Senate Bill 105, introduced in December, voters would be asked to approve a constitutional amendment under which appellate judges would be appointed by the governor with the advice and consent of the Senate.
Missouri is one of more than a dozen states that use some form of commission to select appellate judges instead of direct election. Frequently described as non-partisan or merit-based, such systems are criticized for perpetuating a judiciary that is out of touch with the broader concerns of voters. Even supposedly non-partisan judicial elections, such as in Wisconsin, attract tens of millions of dollars in partisan contributions as both sides try to win control of the court.
South Carolina has an even more lawyer-dominated judicial selection system, where a committee dominated by lawyer-legislators screen candidates who are then elected by the General Assembly.
