By Lynn Whaley Vogel
The following op-ed piece was published on the Columbia Daily Tribune website on Tuesday, March 20, 2012.
In his March 11 opinion piece, Rep. Stanley Cox says his No. 1 goal is to strengthen the independent judiciary, so it is free of "partisan preferences or the demands of special-interest groups." We share that laudable goal, but that's where our common ground ends. To advance this goal, Cox proposes doing away with Missouri's Nonpartisan Court Plan and replacing it with a system based on the federal government's method of selecting judges. He would have the governor nominate state judges and the Senate advise and confirm. He says this would reduce the influence of special-interest groups on judicial selection. First, in reality, Cox's proposal injects politics into a nonpartisan process that has worked for Missourians for nearly 75 years. Second, the Nonpartisan Court Plan isn't broken and doesn't need fixing. It provides Missourians with high-quality judges while keeping the influence of money and politics out of our courts.
There is no hue and cry from Missourians protesting the quality of Missouri judges or the fairness of their decisions. Missouri judges are doing their jobs, and they have earned their reputation for deciding cases based on the law and the facts of the cases before them. Cox claims the need to scrap the Nonpartisan Court Plan because of two decisions made by Missouri judges in recent years. Missouri judges make thousands of decisions each year. If the meaning of a law were always clear, we — and every other state — would not need two levels of appellate courts to help us determine that meaning.
A more reasonable stance would be to accept the fact that not everyone agrees with every judicial or political decision. Cox asserts something is wrong with nonpartisan judges because the Appellate Judicial Commission made several errors when performing a non-judicial and quasi-judicial function. However, his argument falls apart when you consider the end result — the Missouri Supreme Court determined the commission erred, and the court took corrective action. The final result was sound; the system worked. When dealing with redistricting, the most politically sensitive requirement of our democracy, our state courts showed they truly are above politics and self-interest.
Missourians abandoned the notion of giving legislators a voice in judicial selection more than 150 years ago, for a good reason. Cox would take us back to a pre-Civil War era and give the legislature control over our judges. Allowing politicians to control who becomes a judge would be a mistake. Under this proposal, a sitting governor who shares party affiliation with the majority party in the legislature would be able to virtually handpick judges without regard to merit. On the other hand, if the governor's party does not hold a majority in the Senate, each appointment or reappointment would become a political three-ring circus — one that would drive away qualified judicial candidates.
The Missouri Senate barely has time now to complete its vital work. This proposal would add an enormously time-consuming and costly task to its list of responsibilities — advice and consent on more than 150 judges. Even if this were theoretically possible, the crisis this model has created at the federal level shows it has serious flaws.
The Nonpartisan Court Plan has no such problems. It provides a system of checks and balances that limits any group or politician from being able to handpick judges. Moreover, our judges are accountable to the people through retention elections.
The plan protects the public's interest, ensuring nonpartisan judges do exactly what they should do — provide fair, impartial and efficient justice to all who rely on the courts. For these reasons, more than 30 other states have adopted different features of Missouri's merit selection system — and that's something in which we can all take pride.
Lynn Whaley Vogel is president of The Missouri Bar.
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