Sandra Day O’Connor supports Non-partisan Missouri Plan for Selecting Judges
By T.J. Greaney February 28, 2009 Columbia, Mo. Daily Tribune
Retired Supreme Court Justice Sandra Day O’Connor spoke yesterday in support of the Missouri Plan, the state’s nearly 70-year-old nonpartisan method of selecting judges to its supreme and appellate as well as some circuit courts.
Speaking to about 500 people in Bush Auditorium at the University of Missouri, O’Connor said the plan needs to be tweaked, not overhauled, and is better by far than electing judges by popular vote, which she said leads to excess and corruption.
“They remain, in my view, on the side of virtue,” O’Connor said of plan supporters. “But they just might benefit from a little bit of perfecting.”
O’Connor reeled off a laundry list of problems with judicial elections, beginning in 1980 with the first state judicial campaign to exceed $1 million in spending. She ended with a case, Caperton v. Massey Coal Co., to be heard next week by the U.S. Supreme Court. In that case, a coal company spent more than $3 million to oust a sitting West Virginia Supreme Court judge. The coal company’s candidate, Brent Benjamin, won the 2004 election and helped overturn a $50 million decision against his corporate benefactor.
“Ignoring the election process is like ignoring a crocodile in the bathtub,” O’Connor said. “A judge’s constituency should be the constitution and the law.”
The Missouri Plan was created in 1940 as a backlash to the influence of St. Louis and Kansas City political machines that were believed to have hijacked the judicial process.
Replicated in more than 30 states, the plan gives the power of selecting judicial candidates to a group of seven: three lawyers selected by the Missouri Bar, three residents selected by the governor and the chief justice of the Missouri Supreme Court.
The group forwards a list of three candidates to the governor, who makes the appointment. The appointed judge faces an up-or-down vote in the next general election.
O’Connor, however, recommended three ways of improving the Missouri Plan:
● Decrease the influence of lawyers on the selection commission, perhaps by raising the number of commission members.
● Make the selection process more transparent. She said Arizona allows citizens to attend the screening hearings of prospective nominees. Missouri should do the same and rid itself of a “smoke-filled room” perception, she said.
● Get people involved. She recommended a good start would be teaching civics to children. To that end, O’Connor has helped create an interactive Web site, ourcourts.org, aimed at middle school students. “Knowledge of our government is not passed down through the gene pool,” she said. “It has to be relearned by every generation.”
Those who attended the symposium spent the rest of the day in panel discussions of the Missouri Plan. The issue has been in the forefront in recent years mostly from critics contending that judicial commissions consistently select groups of left-leaning judicial candidates who are out of step with the state.
In one panel, Vanderbilt University law Professor Brian Fitzpatrick said that 88 percent of Missouri appellate court nominees who made political contributions have given to Democrats since 1995. “Lawyers have political views like all the rest of us, and they want to see those views vindicated,” he said.
Fitzpatrick also said it’s problematic that lawyers who push for liberal judges might be doing so because liberal judges tend to be more sympathetic to plaintiffs in court. “Their livelihoods are wrapped up quite tightly with the decisions these judges will make,” he said.
Missouri Chief Justice Laura Denvir Stith strongly disagreed. “No system works better at keeping partisan politics at bay than the Missouri Plan,” she said. Anyone who believes the system has a liberal bias should ask her former colleague on the court, Stephen Limbaugh, a conservative who made it through the selection process.
After hours of discussion, there was no end in sight to the debate. “The fight here is between the plaintiff’s bar and the chamber of commerce, the business interest,” MU Law School Associate Dean Thom Lambert said. Asked what MU students and faculty believed, he said, “I don’t think there’s a consensus.”