Foreword: Sandra Day O'Connor, Earl F. Nelson, and State Judicial Selection and Retention

By Dessem, R. Lawrence | Missouri Law Review, Summer 2009 | Go to article overview

Foreword: Sandra Day O'Connor, Earl F. Nelson, and State Judicial Selection and Retention


Dessem, R. Lawrence, Missouri Law Review


In difficult cases, in unpopular cases, in cases that may draw criticism from the executive branch of government, the legislature, the media, or the general populace, it is essential that judges be insulated from public pressure. However much we believe in the strength and integrity of the human spirit, we cannot expect judges to do justice without establishing an institutional framework that guarantees them that their next decision, however loathsome or unpopular, will not be their last. (1)

It is my great pleasure to introduce the Missouri Law Review's 2009 symposium: "Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." This has been a labor of love by the entire staff of the Missouri Law Review, and both the February 27 symposium and the written symposium that follows are a work product that should serve as a touchstone for scholars, policy-makers, and all members of the public who are interested in state judicial selection and retention systems and the current efforts to amend and extend those systems. (2)

In recent years there has been a great deal of controversy concerning the selection and retention of state judges. (3) Not only has this debate played out in the news media, (4) but it also has reached the national consciousness through one of John Grisham's bestselling novels. (5) These battles have occurred in Missouri as well, where there have been numerous attempts to amend the Missouri Nonpartisan Court Plan (6) in recent years. (7) Just as significantly, the voters in Greene County, Missouri, last November voted to bring their county within the selection provisions of the Missouri Nonpartisan Court Plan, thus becoming the first jurisdiction in more than two decades to move from judicial elections to a system of nonpartisan appointment and subsequent voter confirmation. (8)

While the proponents and opponents of various systems of state judicial selection and retention have created a great amount of heat concerning these issues, this symposium was developed in an effort to shed some light on state judicial selection and retention. The symposium's title is instructive: "Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." The verb "mull" comes from Middle English, and its primary definitions include "to grind or mix thoroughly ...: [to] pulverize" and "to consider ... at length ... [to] ponder." (9) Far too much of the recent discussion concerning judicial selection and retention can be classified under the first definition because of its grinding nature and the attempt to pulverize the arguments of others. The goal of this symposium, however, is to fall within the second definition by providing a forum to consider at length various perspectives on state judicial selection and retention and to ponder these different arguments and analyses.

Both the live and published symposium attracted some of the leading authorities on judicial selection and retention--from Missouri and from across the nation. In addition to Justice O'Connor's Nelson Lecture, the other symposium discussions were organized into three major areas. The initial set of papers addressed the topic "Special Interest Influence: Balancing Independence and Accountability." (10) The second panel of presentations focused on "Retention Elections in a Merit-Selection System: Balancing the Will of the Public with the Need for Judicial Independence and Accountability." (11) The concluding panel considered "The Fallacies and Fixables of Merit Selection and the Constituencies that Support Missouri Plan Reform." (12)

The symposium highlight was Justice Sandra Day O'Connor's Earl F. Nelson Lecture, which is included in the published symposium. (13) Since her retirement from the Supreme Court, Justice O'Connor has devoted a significant amount of her professional energies to raising public consciousness concerning recent attacks on judicial independence. …

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