For 68 years, Missouri has selected its Supreme Court judges through a system of merit selection dubbed the “Missouri Plan.” Today, 26 states use some form of this plan, most having abandoned partisan judicial elections amid concerns about the effects of political pressure on a fair and evenhanded application of the law.
Recent debates about this process in Missouri have instigated many proposals for changes. Because judicial independence is critical to a well-functioning legal system, this study will analyze judicial selection and its effect on the quality of courts.
This study proposes an empirical measure of legal system quality to compare states by selection plan type: (1) nonpartisan elections; (2) partisan elections; (3) legislative elections; (4) gubernatorial appointment with a nominating commission; (5) gubernatorial appointment with a nominating commission and legislative confirmation; (6) gubernatorial appointment with legislative confirmation only; (7) gubernatorial appointment with approval by some form of executive council.
The Institute for Legal Reform conducts an annual survey that provides an empirical framework for judicial quality. It focuses on: (1) overall treatment of tort and contract litigation; (2) having and enforcing meaningful venue requirements; (3) treatment of class action suits and mass consolidation suits; (4) punitive damages; (5) timeliness of summary judgment/dismissal; (6) discovery; (7) scientific and technical evidence; (8) non-economic damages; (9) impartiality and competence of judges; and, (10) predictability and fairness of juries.
The data show that states using Missouri’s current system, on average, rank significantly higher than states using partisan elections, nonpartisan elections, and gubernatorial appointment with council approval alone. We also find no other method of selection resulting in average scores or rankings that are statistically higher than Missouri’s current system. Based on our analysis, Missouri’s current system is far superior to several of the alternatives.