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Missouri’s judicial selection process— known as the “Missouri Court Plan”—has been the subject of intense debate in the state since Supreme Court Judge Ronnie White announced his retirement.1 Nationally, White is probably best known as the Clinton judicial nominee who failed to win confirmation after Senator John Ashcroft made the case that White would be soft on crime. Ever since, conservatives in Missouri have hoped for the opportunity to replace him with a judge possessing an “originalist” approach to the state constitution.

When White announced his retirement earlier this year, that is exactly what conservatives expected. And those expectations were validated when Missouri Governor Matt Blunt immediately “committed to appointing a Missouri Supreme Court judge who will faithfully interpret our constitution and will not legislate from the bench.”2 But conservatives cried foul when those administering the Missouri Court Plan—“the Appellate Judicial Commission”—gave Blunt the option of picking White’s replacement from a panel of three judges whose records looked more like White’s than any originalist’s. Even more disappointing to conservatives was the perception that the Appellate Judicial Commission had attempted to force Blunt’s hand by sending him three options, of whom the most palatable was also most like White in one critical way: she had been fiercely criticized for her record in criminal cases.3 

The mismatch between conservative expectations and what Blunt was able to deliver has its origins in the nature of the Missouri Court Plan. In contrast to the federal appointment model, where the executive nominates and the legislature confirms judges, Missouri governors must appoint a judge chosen from a panel of three candidates submitted by the state’s seven-member Appellate Judicial Commission.

Nearly seventy years after its enactment, new politics and special interests are being used as evidence that the Missouri Court Plan has failed to achieve its stated goals. Specifically, a loosely organized coalition of state scholars, influential lawyers, and lawmakers has argued that the Missouri Bar Association and its close allies control the Appellate Judicial Commission.4 As a result, Missouri legislators have proposed a number of constitutional amendments that would modify Missouri’s judicial selection process by introducing more accountability to the public. The following is a brief summary of the dominant proposals.

HJR 33: –“The Accountable Commission Plan”

HJR 33 would preserve, but modify, the Appellate Judicial Commission. Specifically, it would alter the process by which members of the commission are chosen. The Missouri Bar Association and the Chief Justice currently fill four seats on the Commission. Under the Accountable Commission Plan these seats would instead be filled by the leaders of the House and Senate, who would select two lawyers each. Further, HJR 33 would reverse the order by which the commission interacts with the governor. As stated, the commission currently provides the governor with a panel of three nominees to choose from. Under HJR 33, the governor would submit his preferred candidate to the commission for its approval. The supporters of HJR 33 argue that it will improve the judicial selection process by making those who appoint judges accountable to the people of Missouri for those appointments.

HJR 31: “The Federal Model for Appointment”

As its name suggests, HJR 31 would replace the current Missouri judicial selection process with the federal model of appointing judges. Specifically, the governor would nominate the candidate of his choice and the senate would then vote whether to confirm the nominee after a public hearing. The role of the Missouri bar would be important, but substantially different from its current role, in that it would be permitted to provide an opinion on the qualification of a particular judge to serve. Further, HJR 31 would prevent the stagnation of nominees that has occurred at the federal level by requiring an up or down vote within 120 days of the nomination.

HJR 34: “Effective Retention and Removal”

Missourians currently have the right to vote whether to retain a judge after that judge has served for twelve years. In practice, critics argue, this “retention vote” has failed to serve any real purpose. The most recent election cycle seems to substantiate this claim, in that a judge with a 30% approval rating—the lowest ever rating of any judge in the entire history of Missouri’s retention elections—was retained by a voter percentage within just a few points of judges with the highest ratings in the state. According to critics of the current Missouri Plan, after more than a decade of failed attempts by the Missouri Bar Association and others to “educate” voters concerning the retention vote, it is time to acknowledge that the process is simply broken. HJR 34 would eliminate the “retention vote” and replace it with a process whereby elected representatives determine whether to retain or remove judges. Specifically, a judge must obtain a simple majority of votes at a “decade review” in order to be retained.

HJR 34 also contains an “emergency clause” that gives the governor the power to remove any judge if his call for removal is approved by two-thirds of the house and senate. According to sponsors of HJR 34, the high vote thresholds would avoid pure political motivations and “knee-jerk” removals. Sponsors of HJR 34 also argue that, in practice, such a retention/removal process will do a better job of bringing to light the qualifications and performance of Missouri’s judges.

The Missouri General Assembly begins its next session in January 2008. It remains to be seen if any of the proposals to update the Missouri Plan will become law in the Show-Me State next year.

*Jonathan Bunch is an attorney and political consultant in Missouri. He is a former law clerk to Judge Stephen N. Limbaugh, Jr. of the Supreme Court of Missouri and a former speechwriter and policy adviser to Governor Matt Blunt. 

 

Endnotes

1 See Virginia Young, So You Want to be a Supreme Court Justice, St. Louis Post Dispatch, August 3, 2007; Bill McClellan, Nonpartisan Court Plan May Not Be So Nonpartisan, St. Louis Post Dispatch, July 27, 2007.

2 Press Release, Governor Matt Blunt, “Gov. Matt Blunt Statement on Supreme Court Judge Ronnie White’s Retirement Announcement” (May 18, 2007) available at http://www.gov.mo.gov/press /JudgeWhite051807.htm.

3 See, Attorneys Against Abuse of the Judicial Appointments Process, The Missouri Non-Partisan Court Plan: Assessing the Summer 2007 Appellate Judicial Commission Process for Judicial Appointment to the Supreme Court of Missouri (Aug. 2007).

4 See, e.g., Curt Levey, Supreme Court Showdown in the Show Me State (Sept. 12, 2007) available at http://www.humanevents.com/article.php?id=22335.

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