Dear Editor:

I am writing in response to the January-February message of Missouri Bar president Charlie J. Harris, Jr. First of all I applaud Mr. Harris for his attainment of the Missouri Bar Presidency, his dedication and hard work.

It is possible that every thing critical Mr. Harris says of the two proposals before the Missouri legislature is correct. However, from my perspective the criticism of the Missouri Plan for selection of certain judges is not going to go away and the kind of “circle the wagons” mentality that he offers up in response does very little to quell the disquieting mumblings from those who are far less learned in the law than we who practice it.

The Missouri Plan has been around for some 60 years and as far as I can tell has never been modified. No governmental program is that good. In fact, if it were such a fabulous system why wouldn’t the rural counties of Missouri over the past 60 years have clamored for its adoption as to the selection of rural judges?

We need bar leadership that is visionary and not reactionary. The same is true of those of us who simply practice law. I suggest, Mr. Harris, that on our behalf you come forward with ways to make the system better and extend the hand of cooperation to those who are dissatisfied with the way appellate judges are selected in Missouri. The statistics you cite from the Federalist Society suggest to me that nearly one in three Missourians does not have confidence in the Missouri Supreme Court. I think we should want to do better than that.

One definition of “politics” is concerned with government. Under that definition politics should be a part of the selection of the judges of Missouri.

J. Michael Cronan
Overland Park, Kansas

Dear Editor:

I enjoyed reading the reprint of Justice Black’s 1942 address to the members of the Missouri Bar Association [“Address of U.S. Supreme Court Associate Justice Hugo L. Black to The Missouri Bar Annual Banquet,” Vol. 64, No. 1], and it might have been enlightening if the Editor had explained why he feels it “remains of interest to contemporary readers.” Had I been in [the Editor’s] shoes I might have commissioned a companion article to give a 21st century perspective on this seven-decades-old decision.

Clearly, Erie Railroad v. Tompkins is a watershed in the Supreme Court’s jurisprudence, and it is one of the few occasions when the justices explicitly overruled one of their own precedents. As we all know, in Swift v. Tyson a unanimous Court struck a blow for a more uniform system of tort laws across the nation. But seventy years ago Justice Black and five of his fellows turned that hundred-year-old precedent 180 degrees. I do not argue which viewpoint is right and which wrong. Clearly the mischievous forum shopping that resulted from Swift was a serious problem. But so too is the “Erie guessing” that today attends every issue of first impression in a diversity case, not to mention the problem of knowing what is “substantive” versus “procedural” state law.

As interesting as those questions are, however, what interests me most is that, taken together, Swift and Erie Railroad demonstrate the essential schizophrenia of our federal system. The heart, the essence, the haecceity of the problem is the tension between states’ rights and the need for a national government. This tension goes back to the very founding of our republic, to Federalists and Anti-Federalists, to Hamilton and Jefferson. It was felt in the Whiskey Rebellion, underlay the long debate over slavery, and had echoes in the civil rights movement of the 1960s. It continues today in various guises, such as in the arguments over “strict-construction” versus “judicial activism” and “popular rights” versus “liberal elites.”

This is a debate the Founding Fathers seemed to embrace, or at least give up trying to resolve. It is the “argument without end,” as historian Joseph Ellis calls it. It is either the genius or the bane of our system of government.

Plus ça change, plus c’est le même chose.

Thanks for letting me air these thoughts.

J. Stuart Showalter
Orlando, FL