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Parties debate judicial selection process

Tuesday, August 21, 2007 | 1:39 p.m. CDT; updated 11:27 a.m. CDT, Tuesday, July 22, 2008

If there is a given in politics, it is the certainty that the party out of power will seize each and every opportunity to ridicule and accuse the “ins” of partisanship and evil chicanery. Such an issue has arisen in the current intramural cat fight over the selection process for Supreme Court justices.

Gov. Blunt and the Republicans question whether the process by which a nominating committee selects three candidates — from among whom he must choose one — actually guarantees merited and nonpartisan selections. Why is the chief executive not empowered to appoint the candidate of his choice, subject to confirmation by the Senate as is done at the federal level and in the majority of states?

Historically, beginning in 1820, all judges were appointed for life by the governor, subject to Senate consent. From 1849 to 1940, Supreme Court justices were elected by the people, first for terms of six years, and extended to 12 years in 1872. Since 1940, the governor has selected from a list of three submitted by a judicial nominating committee, which consists of a Supreme Court justice, an attorney selected from each of the three appellate districts by Missouri members of the bar and a nonlawyer from each district chosen by the governor.

Proponents of the committee system praise it for its nonpartisan and merit-based selection process. They also are quick to point out that this system, originated in Missouri and adopted in varying formats by 23 states, encourages confidence in the judiciary by removing political influence from the selection process.

Opponents contend that the opposite is true ­— that the process actually contributes to public suspicion and/or distrust because it is isolated and elitist. Accordingly, the system in use by the federal government and 27 of the states in which the members of the judiciary are chosen by the chief executive, subject to Senate approval, is their preference.

According to Missouri Democrats, the governor, abetted by his Republican majority, intends to replace a proven nonpartisan and merit-based selection process with a system to stock the judiciary with political cronies. Additionally, he is alleged to be casting aspersions on the process with nitpicking requests to the Chief Justice for additional information on the nominees for the court vacancy and the procedures as well.

On the flip side, the Republicans question whether the commission’s cloak of secrecy willfully ignores the state’s Sunshine Law. The governor has also accused the commission and the Chief Justice of sloppy work and incomplete information submitted on the nominees, including failure to provide photographs of the nominees — an omission that is hard to excuse. The commission counters that Supreme Court rules trump the Sunshine Law and exempt the Appellate Judicial Commission from the rules basic to all government bodies — a conclusion not supported by most constitutional scholars.

Both parties have valid arguments, but neither is innocent of purely partisan intent. Naturally, the Republicans are eager to assert their influence over the judicial selection process. The Democratic minority decries it as a power grab; however, I doubt there are many so naive as to believe the Democrats don’t view maintaining the status quo an advantage, at least until they return to power.

While I don’t have a dog in this fight, I fail to see the advantage in nomination by committee. If the system designed by the U.S. Constitution and used in most states is in good order, do we need a commission of seven lawyers operating in secrecy to accomplish the identical process? And, as for the partisan aspect, no one party is going to dominate the governorship or the legislature forever — one day, Republicans will again complain of power-mad Democrats.


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