Politicians know that people believe almost any claim if it is simple and if it is repeated many times. It is Messaging 101: the sound bite. In the debate over judicial selection, politicians pushing for changing our system repeat the claim that greedy trial lawyers control the process. Of course, it is a lie, but truth in politics is very optional.
Last year, this group of politicians used a different message: activist judges. This, too, was a lie, as the Blunt administration and members of the General Assembly were repeatedly asked to name one single case in Missouri where an activist judge failed to follow the Constitution. The silence was deafening. Their message failed to resonate and their efforts fell short, but the new message excites more people.
Vilifying trial lawyers (but not judges) is now the principal weapon being used to attempt sweeping changes in the way Missouri judges are selected.
HJR 10 is a proposed constitutional amendment that will appear on the November 2010 ballot if the Senate approves it before adjournment. HJR 10 abandons the history of Missouri and the principles upon which the Nonpartisan Court Plan was adopted. For the first time since before the Civil War, our legislature will involve itself in the judicial selection process. Under this proposal, a sitting governor who shares party affiliation with the majority party in the legislature will be able to virtually handpick judges without regard to merit.
Between 1820 and 1850, the Missouri Senate confirmed gubernatorial judicial appointments. Our Constitution was amended 159 years ago to keep the legislature out of judicial selection. In 1940, the Nonpartisan Court Plan was added to our Constitution to create the first merit based judicial selection system in the United States. Known throughout the United States as the Missouri Plan, it applies to all of our appellate judges and only a fraction of our trial judges. Under this plan, various commissions are created to screen applications for judicial vacancies and submit a panel of three finalists to the governor, who then chooses the judge. The commissioners are a blend of people appointed by the governor and attorneys elected by the members of the Missouri Bar Association.
The plan gave the sitting governor a weak role in the process, first by allowing him to appoint 40 percent of the lay commissioners at the rate of one commissioner every two years, and then by allowing him to choose from only three finalists. In 1940, governors served only one term and could appoint only two lay commissioners.
The Missouri Plan was crafted in an era of corrupt politicians and judges who were often handpicked by party machine bosses like Tom Pendergast. Giving the governor a limited role in judicial selection and ignoring the legislature altogether was quite intentional. The goal was merit selection of judges, and for 69 years, the Missouri Plan has given us a judiciary that is envied throughout the United States.
HJR 10 would return politics to our courtrooms. The governor would be allowed to appoint 50 percent of the commission in one day. Instead of three finalists, he would get four, unless he didn’t like them, and then he would get four more. Under HJR 10, the Senate must confirm the governor’s appointments to the various commissions.
That will be no obstacle when the governor belongs to the party in control of the legislature, but one can only imagine the political circus that would occur if he is not.
Finally, the legislature, not the Supreme Court, is given the power to write all of the rules under which the judicial commissions operate. The concept of separation of powers will be lost.
How could Missouri voters possibly approve these pitiful ideas? Messaging 101: greedy trial lawyers control judicial selection. But the facts get in the way. In the last 25 years, trial lawyers have filled only 60 percent (9 of 15) of the attorney slots on the appellate judicial commission, and those nine attorneys would be solid candidates for a Missouri Legal Hall of Fame, if such an entity were ever to exist. Since 1970, only eight of the 21 Supreme Court judges were trial lawyers. Ann Covington was one. So was Steve Limbaugh. Zel Fischer, the newest Supreme Court judge, was a member of the trial attorney association. Governor Blunt called Fischer a “highly respected judge and attorney.” Just as with the trial lawyers serving on the appellate judicial commission, those trial lawyers serving on our highest court represent the highest ideals of integrity, intelligence and impartiality. But these facts will not deter those hoping to politicize our court system from labeling greedy trial lawyers as the problem.
Don’t be misled into believing our court system is broken. Simply put, it just might be the best system ever created in this country.
H.A. (Skip) Walther is president-elect of The Missouri Bar.