This November voters in some 30 states again will be denied the
right to elect their state supreme court, appeals court, circuit
court, probate court and criminal corrections judges. Instead, a
closed-door commission dominated by plantiffs’ lawyers will decide
who will sit on the bench. Voters, however, will be allowed to go
through the motions of a “retention election.” The retention
election is no election at all, since judges run unopposed, and
once appointed it is almost impossible for voters to remove a judge
from the bench.
This system for choosing judges, called the Missouri Plan, was
adopted by Missouri voters in 1940 (and by more than 30 states
since) following a few contentious elections said to have been
influenced by the Tom Pendergast machine out of Kansas City. The
Missouri Plan was sold as a way to keep politics out of the court
system, but as the Wall Street Journal reports, the plan
“has instead marched Missouri’s courts steadily to the left.” This
is due largely to the left-leaning judicial commission, which
recommends judicial candidates. Last year Missouri Governor Matt
Blunt was so dissatisfied with the liberal nominees for the state
Supreme Court he considered rejecting all three, which would have
allowed the commission to select the most liberal candidate. If you
think this is “keeping politics out of the courts,” I have a bridge
I’d like you to take a look at.
These days Tom Pendergast is long dead and the only racket in
Kansas City comes from the jazz joints on 18th and Vine. So why do
bar associations and plaintiffs’ lawyers still fear the election of
judges?
The first reason is — you guessed it — political. Bar
associations, along with the law schools, are bastions of liberalism. Control of the courts would mean a
clean sweep for liberals, and voters, who traditionally favor
strong sentences for criminals, cannot be trusted to vote for
liberal judges. Of course, bar associations cannot come right out
and broadcast this. State bars are governmental entities and are
banned from such overt political speech. What’s more, local bars
would lose half their membership, though that has hardly stopped
them from endorsing the plan. So the official reason the bar
associations give is that judicial elections lead to partisanship
and mudslinging, which harms the image of judges.
Missouri bar leaders were appalled at the 2004 Illinois Supreme
Court election, which featured several malicious attack ads. The
ads, however, were factual and provided voters much-needed
information about both candidates’ records. Bar associations,
however, exist largely as PR vehicles for lawyers and judges to
counter the never-ending negative public perception of legal
professionals.
You would think that depriving the voter of his right to choose
and hold accountable judges would be a hard sell, and that the
public would give up the franchise only with a fight. That the bar
associations were able to sell and preserve the Missouri Plan so
easily shows how little opposition they have had. It also shows
what a cynical lot lawyers are — who, instead of celebrating free
and open elections, have eliminated them in favor of partisanship
politics.
IF THE MISSOURI Plan hasn’t ended partisan politics in the courts,
has it at least given us better judges?
In Missouri and most other states, lawyers are prohibited by
ethics rules from criticizing judges (arguably a violation of free
speech), but during each new election year attorneys are allowed to
rate judges anonymously. Thus, in 2006, one St. Louis circuit
judge, Judy Draper, received one of the worst ratings in decades,
with only 27.5 percent of lawyers recommending her retention.
Overall 192 lawyers surveyed said Judge Draper was poor or below
average when it came to “consistently applying laws, rules, and
sentences.” (39 lawyers rated Draper excellent or above average,
and 45 rated her average.) Draper received even worse scores when
it came to “using good judgment in application of relevant law and
rules,” again criteria one would expect in one wearing the robes of
judge. Yet she was still retained by voters.
This inability of the public to vote out judges is celebrated by
the Missouri Courts system. As its website boasts:
The success of the plan in selecting qualified judges
is evident from the fact that, since its adoption, the public has
not voted any appellate judge out of office, and only two circuit
judges have been voted out of office. Judge Marion D. Waltner of
Jackson County was voted out in 1942. The other, Judge John R.
Hutcherson of Clay County, was voted out in 1992 after receiving
failing reviews from lawyers in the judicial evaluation
survey.
The obvious reason a judge like Judy Draper is retained is that no
one is allowed to run against her, thus there is no campaign, no
debates, and no campaign ads where her record can be exposed to the
public. Most voters go into the ballot box never having heard of
Judy Draper. Why then would they vote her out?
If partisanship in the selection of judges is as widespread as
ever, at least the Missouri Plan has eliminated the attack ads and
mudslinging so detrimental to the image of lawyers, right? Not
quite. During the last election one conservative-libertarian group
began airing TV and radio spots urging voters to vote against
retaining an ultraliberal Missouri Supreme Court justice. These ads
were immediately answered by state and local bar associations and a
pro-merit selection group. The judge, Richard Teitelman, was easily
retained. But with those ads, the state bar’s main argument for
keeping the Missouri Plan all but evaporated.
Despite the muzzling of lawyers, the eradication of election
campaigns, and years of expensive PR, the image of lawyers remains
exceedingly negative. Americans, polled by the Gallop organization,
consistently rank lawyers “low” or “very low” in ethical standards,
alongside car salesmen and labor union leaders.
Now, 58 years later after the adoption of the Missouri Plan,
some voters, and more important, legislators, are having second
thoughts. After all, if our governors, U.S. senators, congressmen,
and president can be elected by the people, why not our judges?
Last week an effort to do away with the Missouri Plan was defeated 83-69 in the Missouri house. But
several other states are considering similar motions. Such bills
are opposed by state, local, and plaintiff’s bars and other special
interests and all are likely doomed. Whatever the outcome, the
momentum is clearly with pro-election camp. At least the organized
bar can no longer take its monopoly of judgeships for granted.
