Let’s be blunt: Judges are important. They wield enormous power. They make decisions that can trump our legislature’s lawmaking — or overturn a vote of the people on a ballot measure. Judicial activists are the most powerful — and often most dangerous — government officials.
And yet, voters have no direct say over who becomes a judge. Not at the federal level. Not in many states.
You might argue that we do at least get to choose the people who choose the judges. But even that tenuous leverage doesn’t exist in the twenty states that employ the Missouri Plan for selecting state judges.
The issue of how we get our judges bubbles up again because the state of Missouri has a new job opening for a supreme court justice. Justice Steven Limbaugh — Rush’s cousin — has left, taking an appointment to the federal bench.
But the governor now picks a person to be confirmed by the state senate, right?
Wrong. Not in Missouri. Instead, the Appellate Judicial Commission, in a closed process, chooses three nominees. The governor is then forced to take one of their picks.
You can see what this seems like: an insider game, a stacked deck.
The seven member commission — composed of three lawyers elected by members of the Missouri Bar, three people appointed by the governor and the state’s chief justice — is essentially controlled by the Missouri Bar Association. Current Governor Matt Blunt has made only one appointment to the commission.
Is it really a good idea to have our most powerful judges determined largely by a private organization?
The assumption that the Bar Association is a public service group with a disinterested agenda, unaffected by biases and exempt from corrupting influences, is hard to maintain with a straight face. Lawyers are a faction. They have an interest in keeping the law complicated, and expanding state involvement and so require suit and countersuit and consultation and a hundred other ways to put numbers into a billable hours column.
It is far more reasonable to argue that the Bar is the last group one wants in charge of a judicial selection process, rather than the primary group. It is a guild, and its interests can be as antagonistic to the public interest as any group’s can possibly be.
Supporters of the Missouri Plan argue that it removes dread “politics” from the selection process. Yet last year, the judicial selection committee reportedly spent as much time grilling potential appointees on their politics, specifically their view of the Adam Smith Foundation that advocates changing the state’s judicial selection process, as they did gauging judicial temperaments.
The commission then handed three names of possible judges to the governor, all of whom were far to the governor’s left and are apparently activist in their approach. The unelected commission chose three nominees unacceptable to the elected governor.
Governor Blunt was blunt in his early criticism of the commission’s selections. Conservatives, led by Tony Perkins with the Family Research Council, urged him to refuse to make such a Hobson’s choice. They wanted the governor to reject all three nominees. But in such a case, the commission makes the decision. Unless, as was hoped, the governor could have stirred up enough public pressure to convince the commission to offer new nominees.
But back in 2007, Blunt blinked. He chose not to take on the mighty legal community and, instead, simply opted for the least objectionable judge. Missouri needs to reform the process or — at least when Republican governors try to choose judges who aren’t liberal activists — “least objectionable” will become the standard by which the state chooses its supreme court members.
Urgent reform is needed to place the power to choose judges in the hands of people who are accountable to the voters. There are several elements in accomplishing that.
First, put voters back in charge, either by electing the Appellate Judicial Commission, or better yet, by scrapping the Missouri Plan and letting voters elect their judges — directly.
Second, the entire process should be transparent. All nominees being considered and all deliberations must be open to the public. The people have a right to know and a right to judge their potential judges.
Today, the public has far too little information. This must change — in law and in reality, too. A new website, Judgepedia, is beginning this change by accumulating critical information about judges and the judicial process across the nation.
Third, Missouri judges should be chosen from geographic districts, not statewide. Smaller districts allow a closer connection between the people and the judge working on their behalf. With smaller districts, when people have had enough of any judge, they can more easily campaign to defeat that judge at a future election or retention vote.
We need a better way of choosing judges, with more voter control, an open process, greater checks and balances, and less control by the legal community or any special interest. Of course, the Bar will fight all of this.
So, let’s be blunt again. A year ago, Governor Blunt decried the process, but didn’t rise to do battle against it. Now, in the twilight of his term and not seeking reelection, what will he do?
Judges matter, governor. Stand up for the people. It’s still your job.