Saving the Missouri Plan

Article excerpt

By removing the organized bar from the process of selecting nominating commissioners and vesting that authority in the political branches, opponents of current merit selection systems hope to gain a political advantage in the ultimate selection of judges.

Most of the attention given to state judicial selection in recent years has focused on the rising costs and increasingly negative tone of contested judicial elections. The emergence of multi-million dollar, no-holds-barred judicial campaigns has prompted reformers to offer a wide range of proposed incremental improvements to existing elective systems while generally eschewing commission-based appointment as a politically unrealistic alternative. States with some type of appointive system generally have seen themselves as immune from the hyperpoliticization of judicial selection that has infected nearly all states with contestable judicial elections.

That feeling of safety is eroding, as systems of commission-based appointment, or merit selection, are now under concerted, coordinated attack across the country. Isolated legislative hostility towards merit selection plans has flared up in many states for years, but the latest threats bear the hallmarks of a nascent but well-financed and national-level advocacy campaign: consistency of message, reliance on stock arguments, and a clear "brand" pushed by a well-known national conservative legal organization. Opponents of existing merit selection plans are becoming increasingly vocal in a number of states including Arizona, Colorado, and Kansas.

The most aggressive campaign against merit selection is being waged in Missouri, which, in 1940, became the first state to adopt a commission-based appointment system. Critics of the Missouri Plan, led and financed by local and national conservative legal groups, have formed an independent expenditure group to advocate alternative judicial selection provisions, purchased billboards and other advertising throughout the state, and unsuccessfully pressured the sitting Republican governor (who recently announced that he will not seek re-election in November) to reject lists of nominees sent to him by the Appellate Judicial Commission for a state supreme court vacancy last year. Defenders of the current Missouri Plan, led by the state bar, have also formed an advocacy group. Both sides are girding for a serious fight, with another recent vacancy on the state supreme court waiting to be filled.

The critics object to the presence on the state's seven-member Appellate Judicial Commission of three lawyers chosen by election of the state bar association. They have charged that state bar elections invariably produce liberal-leaning trial lawyers who are hostile to business interests in general, and to the sitting governor in particular. They have advanced various proposals to alter the appointment authority for members of judicial nominating commissions, most of which grant exclusive authority to the governor to appoint and remove commissioners at his or her whim.

The critics also have charged that the rules and procedures used by nominating commissions in Missouri are overly secretive. Although most merit selection systems could benefit from greater transparency, critics of the Missouri Plan have offered solutions that would make sensitive personal information public. …