The Missouri Plan, or: How I Learned to Stop Worrying and Love the Lawyers
Missourians amended our state constitution in 1940 to change the ways judges were selected for the Supreme Court, the Court of Appeals and the circuit courts of Jackson County and Saint Louis City. This was done in response to public concerns about the power of political machines in electing judges under the previous system. Dubbed “The Missouri Plan,” it has been expanded to include circuit judges in Saint Louis, Clay, and Platte Counties. The amendment’s provisions replaced elections with a judicial commission, which reviews applicants for open positions and narrows the list down to three choices. The governor then selects a new judge from that panel. The system has worked very well for Missourians, taking some of the politics out of judgeships and efficiently filling vacancies. However, a few important changes could make the plan work even better.
The recent Supreme Court opening has raised to new prominence the simmering dispute over the true non-partisanship of the Missouri Plan. Allies of Governor Matt Blunt feel that the current appellate judicial commission has not fairly recognized the fact that he, not the commission, is the elected leader of Missouri. The current make-up of both the commission and its recently selected panel, which many conservatives feel is tilted toward the left, seem to substantiate this charge. This has led to calls from some legislators to do away with the Missouri Plan. While changes need to be made, doing away with the plan entirely would be going too far.
The most important change for the Missouri Plan is the elimination of six-year, staggered terms for governor-appointed positions. In theory, staggered terms might allow for more independence and less partisanship, but in reality they have served to allow outgoing governors to load up commissions with their supporters beyond their terms in office. For example, former governor Bob Holden made six appointments to various judicial commissions during the time between when Governor Blunt was elected and took office two months later. Stacking the deck with supporters of your own party is, I am confident to say, not what the framers of the Missouri Plan had in mind. Making the appointed positions’ term coincide with the governor’s own term would serve to respect the wishes of voters and whatever candidate they choose to elect.
The second change I recommend is to add one appointed position to each commission, making the number of appointments equal to the number of judges and attorneys on the commission. Currently, the appellate commission is made up of the chief justice of the Supreme Court, three lawyers elected by the bar association, and three gubernatorial appointments. Each of the county commissions is made up of that circuit’s chief judge, two elected lawyers, and two gubernatorial appointments. Adding an additional appointment to each commission would make the landscape for selection more balanced. Let us not delude ourselves about the goals of the lawyers who run for judicial commissions via bar association elections. They, particularly the activists within the Missouri Association of Trial Attorneys, are not always looking for the most qualified people to elevate to judgeships. Many of them are looking to support candidates who agree with their legal opinions.
Supporters of the Missouri Plan can point out that the retention votes appointed judges will face in the future act as a check and balance for the system. The retention vote is a good practice, but electoral history has shown it is almost impossible to get enough people to focus on the issue. Last year in Saint Louis County, a judge was handily retained by voters when an overwhelming number of lawyers, in a bar association survey, had advised against retaining her — a recommendation echoed by area newspapers. Perhaps we could improve the retention vote system by taking a page from Illinois and mandating a 60-percent vote in favor of retention in order for a judge to remain in office. I believe that is an idea worth debating.
Finally, the Legislature should take steps to make it clear to all that the various judicial commissions’ actions are covered by the state’s sunshine law. It astounds me that an appointed commission thinks it does not have to comply with Missouri citizens’ basic right to know what their government officials are doing. With these changes, I believe we can reach a fair compromise and retain the best parts of the Missouri Plan for judicial selections, without returning to the electoral problems that led us to create the plan in the first place.
David Stokes is a policy analyst for the Show-Me Institute.