Is justice for sale in Missouri? It now appears that we will have a chance to vote on that question in November.
After receiving $675,000 from two Missouri businessmen — David Humphreys and Stan Herzog — and $975,000 in secret donations, James Harris and ShowMe Better Courts filed signature petitions with the secretary of state to place an initiative measure on the ballot in November that would end the Missouri Plan in favor of partisan judicial elections statewide.
With merit selection, our judges are accountable to the Constitution and law, not public opinion. We have a judiciary free from scandal and corruption because we select our appellate and metropolitan judges based on integrity, intelligence and experience, but this was not always true.
In the 1930s, Missouri judges were hand-picked by Tom Pendergast, the head of the corrupt political machine in Kansas City. Pendergast wanted judges who would rule as he wished. If they failed in that regard, he replaced them. Elections didn’t work because Pendergast committed widespread voter fraud, but our citizens voted in 1940 to abandon elections and instead adopt the country’s very first merit selection system for judges.
If Humphreys and Herzog have their way, we will ask our judges to become politicians, raise campaign contributions and wage political campaigns. This subject has commanded a fair amount of my time in the last few years, and the question is often presented: We elect other government officials, so why not our judges? After all, we live in a democracy. It is a simple question but the answer goes to the heart of our justice system.
The answer lies in the difference between what politicians do and what judges do. Judges are to be honest, impartial and competent and decide cases based on the law and the facts of the case. They are not to decide cases based on their political beliefs or their own self interest. They are supposed to ignore possible criticism and the identities of the litigants or their attorneys.
Politicians are free to follow their political ambitions, to serve interest groups and show kindness to their campaign contributors. Politicians are expected to behave based upon their self-interest and their political ideology. This is the essence of politics, but it is also the antithesis of judicial behavior.
Of course, many of our trial judges are still elected, but almost exclusively in counties where voters know them or know about them. Winning candidates are usually voted into office based on their legal abilities, not their political skills. Our elected judges have not been forced to raise big money or launch negative attacks on their opponents because the voters are already familiar with them.
While elected judges can demonstrate the highest judicial ideals, they can face challenges and obstacles that appointed judges do not. How difficult is it for an elected judge to ignore sizeable campaign contributions donated by a litigant or attorney? In Texas, a recent poll disclosed that half of their judges admit that campaign contributions had a significant effect on their decisions. How difficult is it – in an election year — for an elected judge to make a decision on the law and the facts rather than community sentiment? We ask our elected judges to set aside political aspirations and dispense justice impartially, and those who are able to do so are special public servants, but can we reasonably expect perfection? Our citizens deserve fair and impartial justice more than most of the time.
Fortunately, our elected trial judges seldom face significant political pressure because they usually do not engage in expensive campaigns. Appellate and metropolitan judicial candidates will not have this luxury, and if forced to wage political campaigns, these candidates will spend millions of dollars to launch attack ads that only demean the opposition. Then, once in office, they will inevitably be confronted with a case involving a campaign contributor, and recusal is uncertain.
In 1940, we found a way to protect the integrity of our courts from human shortcomings by adopting the Missouri Plan, thus ending the cronyism and corruption that tarnished our court system in the early part of the 20th Century. If we return to an elective system, our judges will return to the political hellhole that was Missouri more than 70 years ago, where accountability was not to the Constitution, or even the public, but to a small group of powerful men with enough money to have their way.
Skip Walther is president of The Missouri Bar.