Charlie J. Harris, Jr.
Berkowitz, Oliver, Williams, Shaw & Eisenbrandt, L.L.P.
Kansas City

A few years ago, a popular book appeared on bookshelves around the nation. It was entitled When Bad Things Happen to Good People. I’m often reminded of that title when I look at some of the proposals currently being considered by the Missouri General Assembly. Were I to write a book about these measures, a good title might well be When Good People Have Bad Ideas.

As the title of my fictitious book implies, I am confident that the proponents of these measures are intelligent, decent, well-meaning people, who are doing what they believe is good for their constituents, and indeed, for the people of Missouri. Regardless, they are misguided if they believe these proposals – which would further inject partisan politics into the Missouri Non-Partisan Court Plan – are in the best interests of our state.

“The Missouri Plan,” as our non-partisan selection plan is widely known, is successful because it avoids the intrusion of politics into a process that should be completely non-political. The selection of judges is not, and should not be, dependent upon the whims of the prevailing political powers. It is crucial that we attract men and women to the bench who are prepared to make difficult decisions based solely on the applicable law – not the whims of politicians who played a role in placing them in their positions. The measures that have been introduced for consideration during this year’s legislative session fall far short of that standard.

For example, HJR 49 proposes a constitutional amendment increasing the number of gubernatorial appointments to the Appellate Judicial Commission – the group of lawyers and non-lawyers who nominate three persons from among all applicants to fill vacancies on the state’s appellate courts. Currently, the commission is composed of one non-lawyer appointed by the governor from each of the three state appellate districts; one lawyer elected by his or her colleagues from each of the three appellate districts; and the Chief Justice of the Supreme Court of Missouri, who serves as chair of the commission. The current makeup of the commission preserves an appropriate balance among the bench, the bar, and the citizenry.

HJR 49 would authorize the governor to appoint a total of five non-lawyers to the commission, without regard to the appellate districts in which they reside. This measure would lead to domination of the commission by gubernatorial appointees, thereby giving the governor greater control over the selection of judges. To let the governor select, and have political influence over, the majority of commission members would allow the governor to virtually hand-pick those who would become judges. Moreover, this proposal would eliminate the geographical diversity inherent in the current Non-Partisan Court Plan. Thus, although it would give the process a façade of impartiality, ostensibly giving “the people” a greater voice in the commission’s operations, passage of HJR 49 would result in politicizing the process by which Missouri selects its appellate judges.

Another proposal that sounds appealing on its face but is actually fraught with danger is HJR 52. This measure would altogether eliminate the Appellate Judicial Commission, as well as the circuit judicial commissions that exist in each of the five jurisdictions that select their trial court judges via the Non-Partisan Plan. In their place, this resolution would provide for “a bi-partisan commission equally balanced in political factions, which commission chooses five qualified judicial applicants on the basis of merit for the office from which the governor must pick one nominee.”

The concept of a truly “bi-partisan commission” sounds wonderful – but the devil is in the details. Instead of members of The Missouri Bar selecting their representatives on the commission, the governor would choose two lawyers – each from different political parties – to serve on the commission. In addition, the governor would appoint two non-lawyers – also from different parties – to the commission. But here is where it really gets interesting. In addition to these four members, the “bi-partisan commission” would include:

• One person appointed by the speaker of the Missouri House of Representatives;

• One person appointed by the minority leader of the House;

• One person appointed by the president pro tempore of the Missouri Senate;

• One person appointed by the minority leader of the Senate; and

• Two members of The Missouri Bar – each from different political parties – appointed by the Missouri Attorney General.

The salient inquiry is this: How is it that an entity that is composed of appointees by the governor, the attorney general, and legislative leaders – all political offices – can remain non-political? In this scenario, it is important to remember that “bi-partisan” is not a synonym for “non-partisan.”

Furthermore, the governor’s judicial appointee would require confirmation by the Missouri Senate prior to assuming the bench! The potential for deal-making and political manipulation of a judicial vacancy in that situation is undeniable, particularly if the governor and the majority party in the Senate are from different political parties. All the bipartisanship in the world cannot remove the obvious political pitfalls of this proposal.

This all brings me to a key question: Why are these misguided measures even being considered?

Generally, the hallmarks of a judicial system in need of reform are (1) corruption, (2) judicial activism, and (3) judges and a citizenry who have no respect for the rule of law. Here in Missouri, these elements are clearly not present to any significant degree. This was confirmed by a recent survey commissioned by The Federalist Society – one of the very groups seeking changes to our non-partisan selection method – which found that 68 percent of Missourians have confidence in the Supreme Court of Missouri.

As has been the case with similar measures in the past, proponents of ill-conceived measures such as HJR 49 and HJR 52 will attempt to extol them as a way to promote open government and public access to the process of judicial appointments. But as the survey commissioned by The Federalist Society clearly indicates, opponents of the Non-Partisan Plan are having difficulty with the fact that Missourians have a justifiable confidence in the integrity of their state courts and the judges who serve in them. Missourians are smart enough to recognize the problems created by doing away with the current non-partisan system – if  they have the facts available to them.

Accordingly, I am asking all members of The Missouri Bar to do what they can to enlighten their friends and neighbors concerning the threats facing our non-partisan selection system. Speak up to individuals and neighborhood or civic groups; write letters to your local newspaper; contact your legislators to register your opposition to the insertion of politics into the selection of non-partisan judges; and encourage others to do the same. Working together, we can shine the light of truth on these types of measures and retain the good system that has proven beneficial to the justice system in Missouri over many years, and has been emulated by other states.