by Professor Rick Hardy, University of Missouri-Columbia, Political Science Dept.
Judges play a vital role in American democracy. They are defenders of our Constitution; they limit the powers of our governmental leaders; and they balance the majority will and minority rights. They, in effect, promote stability in an ever-changing society.
But what is the ideal judge? Certainly, a judge should be free of bias; the person should be open-minded, even-handed. The person should be well-versed in the law, and the person should be above the fray. To use the vernacular, you can't play the game and be the umpire at the same time. I think what it boils down to is legitimacy. As Supreme Court Justice Thurgood Marshall once said, the ultimate power of any judge rests with being accepted by the people. That's legitimacy.
But the question is how do you get the most competent judge? What is the best way to select a judge? Those are the questions that have plagued the architects of government and the poets of freedom alike. While the answers may seem straight forward, they are very difficult, and from the very beginning of our democracy we've debated over the proper form of selecting judges in our American system. You can go back to the debates at the constitutional convention or the debates over the ratification of the Constitution among the Federalists and Anti-Federalists. But whatever it is, we still today are questioning the proper rule of selecting judges.
There are many ways in which we select judges throughout the states. I'd like to highlight a few of those efforts and talk about the advantages and disadvantages of each form very briefly. One of the oldest forms is gubernatorial appointment; that is, appointment of the Supreme Court judge by the highest ranking official of the government. This is used in eight states, mainly the northeastern states. There is one exception, and that's Hawaii.
What happens? The governor appoints, much like the president appoints, the members of the Supreme Court. And the state Senate then confirms. This method has worked fairly well, although many people complain that the people who are nominated or ultimately selected are people who are friends of the governor or are, perhaps, friends of people who've contributed large amounts of money to the governor's campaign. You still could have very good judges in this manner. Indeed, early on in Missouri, in fact in 1820, our Missouri Constitution called for this method of selection by the governor of Missouri Supreme Court judges and all judges in the state―and they were appointed for life. That ended in 1848 and 1849.
A second method of selecting judges is through the state legislature. Four states now select their Supreme Court judges through the state legislature. They are Connecticut, Rhode Island, South Carolina and Virginia. These were all part of the original 13 states or colonies. These states had experiences of very strong governors. Perhaps, this is why they have opted to have the state legislature select the members of the high court.
What's good about this system? Well, it's thought that perhaps it would be closer to the people. The state legislators are elected more often than the governor. And perhaps it would be a better reflection of the will of the people in the high court. It does create a problem with judicial independence. Studies have indicated repeatedly that members of the state Supreme Court from those four states tend to come from the state legislature themselves. Perhaps that's not surprising.
A third method of selecting judges in the states is by a partisan election. This began during the 1830's and '40's, when a movement swept across the United States, called Jacksonian Democracy, or as Andrew Jackson called it, egalitarianism. Part of the philosophy of Jacksonian Democracy was that a way to cure any ills in the American political system was to elect more people. In fact, we started electing a lot of judges. Beginning in 1846, New York became the very first state to elect its state Supreme Court judges. Within the next decade, 15 of the 19 existing states adopted this method of selecting judges. In fact, in1849, Missouri also adopted this form and we began electing judges by the people. There are some good things about this system, perhaps. We find that the people had a direct voice on who the judges were going to be. As they began running on party labels, first as Democrats and Whigs, and then as Democrats and Republicans, people could then get an idea of who was going to be on the court and, perhaps, what their philosophy might be. The drawback, of course, is that there is a question of judicial independence.
Can a person truly be independent when they are selected on a partisan basis? Today there are approximately 13 states that elect their state Supreme Court judges at the statewide level on a partisan basis. For example: in Illinois and in Texas, it's not uncommon to spend hundreds of thousands of dollars to get elected to the state Supreme Court. One might ask the question, can you still be an umpire and play the game? If you don't have your own money, you have to raise it.
And then the question becomes, where do you raise the money? There's always a potential conflict of interest when you raise lots of money from special interests and then have to serve as judge later on for potential cases involving these groups. There, too, we find a lot of judges spend their time raising money and running for office rather than spending time doing what they are elected to do in the first place, and that is to resolve conflicts.
So, we find that many states don't have partisan elections. Because some states dislike the idea of partisan ballots some states have gone to the non-partisan election. We find that in a few states. For example: in North Dakota, Wisconsin and Washington state, the judges are placed on the ballot on a non-partisan basis. Their party label does not appear. The idea here is that the judges are going to be close to the will of the people. They will echo the wishes of the people at election time.
The drawback, once again, is can a person be truly independent when they are elected by the people? One might wonder how the U.S. Supreme Court decision of Marbury v. Madison or, perhaps, McCully v. Maryland would have been rendered had Chief Justice John Marshall been elected by the people. Nevertheless, it is up to the states to determine. When you don't have a partisan label on the ballot, on occasion you find that other factors, such as ethnic name recognition or gender name recognition, play a vital role in selection.
The final method, and the one that I'm going to speak about in a little more detail, is the Missouri Plan. This is a unique plan. It's a hybrid plan, and it's a non-partisan court plan that was developed by Missouri in 1940 and has served as a role model in some form or another in approximately 30 states.
Here is a brief background of how it came about. The Missouri plan has its roots in the Progressive Movement at the turn of last century. There was a lot of corruption going on, particularly in big cities, and much of the corruption was due to big bosses ruling big cities. Votes were bought; judges were thought to be corrupt. There were many leaders who stepped forward to try to change these things. Among those leaders were Teddy Roosevelt, who later became President; William Howard Taft, who later became president and chief justice of the Supreme Court; and a young man who was a law professor and a skilled writer by the name of Roscoe Pound. Indeed, in 1904, Roscoe Pound appeared before the American Bar Association and exclaimed in very vitriolic tones that unless judges were appointed rather than elected we would have a problem with accountability and legitimacy of judges throughout the United States.
In 1913, a significant event occurred in the reformation of decision making. In 1913, the American Judicature Society was formed to bring about reform of state judicial systems. The first leader of that organization was Albert Kales. He was the director of the American Judicature Society, and through his drive and ambition he came up with a plan, a rather unique plan, which combined many of the elements of both the elective and appointed positions.
Here was his plan in a nutshell. He wanted to have, first of all, a blue ribbon commission made up of competent attorneys that would sift and winnow through all of the nominations and then allow the highest ranking official, typically the state governor, to make the appointment based upon the selection of the nomination list given to him by the commission. Once the person is nominated and serves on the court, after a period of time that person would have to be subjected to voter approval. Give the person the time to learn the ropes, make decisions, and then have the person's name placed upon the ballot for approval and let the voters decide. This is a retention election.
This went very well and was later refined in 1936 by a man named Harold Lasky and became know as the Kales-Lasky Plan. In 1937, the American Bar Association had a meeting in which the House of Delegates endorsed the Plan. From that point two states decided to change their state election plans on selecting their Supreme Court judges―the state of Ohio and the state of Michigan. They called for a plan that was patterned after the Kales-Lasky Plan. But unfortunately neither state passed that reform. It was not until 1940, and the Show-Me State of Missouri, before the Plan was ever passed.
Why would Missouri, of all states, be the state that adopted major reform in judicial selection? According to two political scientists, Watson and Downing, there were two events that converged. First there was an ever-growing concern about machine politics in the inner cities of Kansas City and St. Louis―concern, for example, about the Pendergast Machine influencing judges at the highest levels. This raised a great deal of concern among the muckrakers and other people wanting judicial reform. Secondly, we have to look at the movement by The Missouri Bar, the lawyers of the bar association in Kansas City, and the St. Louis Bar Association. Together the leaders of these three organizations began to press the state legislature for change. One of the things that they wanted to change was the way judges are selected at the highest level. And they found the Missouri Plan very appealing.
They first went to the Missouri General Assembly only to find that all calls for change fell on deaf ears. If you are going to change anything in Missouri government you have to let the people know what you are doing. It's more than just a legal change; it has to be a political, and more importantly, an educational change. What was learned by the experiences in Ohio and Michigan was put to good use in the Show-Me state. The Missouri Bar went out and started talking to leaders―business leaders, women's leaders, groups such as minority groups, and civic organizations. Together they built a coalition that helped put this on the ballot. It passed in 1940 by almost 55 percent of the vote. Ironically, it only passed in 22 of the 114 counties in Missouri. Indeed, 92 counties voted against this reform. But it did pass in the most populous counties in the state, the counties most adversely affected by corruption of the highest level in judicial circles. In 1940 the Missouri General Assembly decided to fight this reform. And so it decided to place a repeal measure on the ballot. This, too, was put before the voters, and this time, again, it was overwhelmingly voted down. In other words, the voters across the state, and this time by twice the votes, supported the Missouri Plan. Missouri then wrote a new constitution, and the drafters of the new constitution decided to leave intact the Missouri Plan. It has been with us ever since.
What are the features of the Missouri Plan? First and foremost, there is a commission. There is a commission to select and nominate members of the Supreme Court and other appellate judges. (Editors' note: When vacancies occur at the trial level, a circuit commission selects and nominates candidates.) The commission for the Supreme Court consists of seven members. Three members are lawyers who are elected by other lawyers from each of the three judicial districts in the state, giving geographical representation. There are also three laypersons who are appointed from the same judicial districts. The seventh member is the chief justice who serves as the ex-officio member and as the chair of the commission. The commission then goes through the names of the nominees, sifts through, then, presents the Governor with three nominees. The Governor has the option of selecting any one of those nominees. Once the person is selected, the Governor then appoints that person to be on the Missouri Supreme Court for a 12-year term. However, after the first year on the bench, that nominee has to be placed on the ballot of the general election before the Missouri voters. It's a very simple question posed to the Missouri voters. Shall John Doe, or Jane Doe―the name of the judge―be retained in office? If the vote is yes, and the person wins the majority vote, the person is retained in office and continues their 12-year term. If the person's name is rejected, then the process starts again. Thus far we've had only two non-partisan judges who have been rejected by the voters.
What's good about this system? What's good is that it combines both the appointment and the election process. It allows a blue ribbon commission, people who are highly skilled and knowledgeable about the legal profession, to select people to be put forward to be appointed by the governor. The governor, who is the highest elected state official, has the authority, the legitimacy, to make the choice. And then finally, the voters have a voice in the system. Voters can approve or reject a person on the court.
How well has this system worked? Let me begin by saying that no system is perfect. And every system is filled with politics, whether it be partisan election; non-partisan election; appointment by governor or the legislature; or the Non-Partisan Court Plan in Missouri. The question is the degree. Politics is all around us anyway. Aristotle said 24 centuries ago, man is by nature a political animal. Each one of us in making decisions everyday makes political decisions. When a judge determines whether the law is legal or illegal, or constitutional or unconstitutional, that judge is making a political decision, just as he or she is making a judicial decision. The question is how much is partisan politics and invidious rancorous politics playing in the system? By and large, most studies indicate that our system works very well. Yes, there have been some times where we've had some rancor in the courts―in the early 1980's. Most recently there has been some concern about people on the court. Nevertheless, on the whole we've had some very outstanding people serve as judges on the Missouri Supreme Court.
Most of the problems, if any that we have had on the court, have generally stemmed from the fact that we've had changes in the partisan balance of the electorate. Typically, when one party wins the governorship for many years it's only natural that the governor selects people in his own party, although not exclusively, to the state Supreme Court. They tend to get along for many years, and then we see a change and a new governor comes in from a new party. When we begin to see changes in the partisan balance of the Missouri Supreme Court, it's only natural that we might see some clashes. Although, I must say that from my observation, most judges get along fine. There are some contentious periods. There are some disagreements over highly controversial areas such as the death penalty or abortion. Things such as those would split any aspect of society. But by and large, it's been a very workable system.
It would be ironic if Missouri would be the state that would jettison the Missouri Plan. Missouri has a unique place in judicial reform. The Missouri Plan is the invention of the state of Missouri. It is Missouri's contribution to the art of government. There may be some changes. Indeed, there's hardly a time in the state legislature when somebody doesn't introduce some kind of reform in the judicial system. Among those proposals have included increasing the number of laypersons on the Commission. Another change has been suggested to increase the threshold for retaining a judge in office. One suggestion recently was to have a 60 percent threshold in order to retain a judge on the bench. Ironically, in recent years we've seen a decrease in the support by the general public. That threshold may create a problem if that proposal were passed. Another proposal would be to have the state Senate ratify any nomination made by the governor. That would be a plan very similar to presidential appointment with senatorial confirmation, much like we have with the United States government. Although in this case you'd still have a retention election. And one final proposal has been offered, and it's been offered on a number of occasions. It's simply to eliminate the Missouri Plan altogether and go to a partisan election. It's up to the voters to decide. It's up to the legislature, which proposed it.
But what can The Missouri Bar do? I think we can learn a lesson from what The Missouri Bar did in 1940. If you want to preserve something, you have to mount a campaign. You have to educate the people. It has to be more than just a political movement. It has to be an educational movement. We have to let people know that this is a plan that, while not perfect, is a plan worth saving. I think this is something that we can all take part in. And if The Missouri Bar really wants to preserve this system as it presently exists, I guess we all have to take part in rolling up our sleeves to get the job done.
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