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.