Fed up with “Boss Tom” Pendergast’s political machine abusing the state’s judicial system, Missourians changed the constitution in 1940 to create the Missouri Plan.
The aim was to take politics out of the courtroom. While many local judges continued to be elected in partisan elections, in urban areas and for the state’s highest courts a panel of lawyers and citizens was set up to name a slate of candidates for judicial openings from which the governor then chooses.
Since its adoption, the Missouri Plan has gone on to serve as a model for other states that use merit selection to fill judicial vacancies.
But over the last decade, Republicans have grown increasingly uneasy about the system. They argue it’s dominated by trial attorneys who have tilted the ideology of the courts.
A push to rework the plan was renewed on Thursday, as Republican Sen. Rick Brattin of Harrisonville received a hearing on his proposed constitutional amendment that would establish a federal-style system by which the governor appoints judges to the state Supreme Court and appeals courts, with state Senate confirmation.
“I would rather see a duly elected governor be able to choose, kind of like the president gets to choose,” Brattin said Thursday. “I’m not too fond of the way it is currently done.”
Sen. Bill White, R-Joplin, said the big issue was that the current system was dominated by lawyers. It may be nonpartisan, he said, but that doesn’t mean it is unbiased.
“We’re not dealing with a Republican-Democratic bias, we’re dealing with attorneys,” White said Thursday. “Having the appellate system favor attorneys.”
Brattin’s proposal, which would have to be approved by voters, faced pushback from various legal organizations, including the Missouri Bar Association, Missouri Organization of Defense Lawyers and the Missouri Association of Trial Attorneys.
David Klarich, a lobbyist for the Missouri Association of Trial Attorneys, said his organization had consistently fought for decades to block the “reinsertion of partisan politics onto the bench.”
“We have not seen a problem with the nonpartisan court plan that would justify its modification to this extent,” he said. “You’ve all heard the phrase ‘elections have consequences.’ Well, that’s the last thing you want when it comes to the judiciary.”
Other criticism was more procedural. Eric Jennings, general counsel for the Missouri Bar, noted that unlike the U.S. Senate, the Missouri Senate meets only from January through May.
“How would interim appointments be handled? Would the governor be calling the senate back continually?” Jennings said, later adding: “Judicial vacancies do not only happen the first five months of the year.”
The last time voters weighed in on the Missouri Plan was 2012. Lawmakers voted to place a constitutional amendment on the ballot giving the governor the power to appoint four of the seven members of the commission that chooses nominees for the Court of Appeals and the Missouri Supreme Court. Currently, the governor appoints three of the seven.
The group backing the amendment ultimately abandoned its campaign, and it was overwhelmingly defeated with 76 percent of voters opposing it and only 23 percent in favor.
Brattin said that ultimately, he’d prefer a system by which elected officials, instead of lawyers, shape the judiciary.
“There is partisanship in these elections,” Brattin said. “It’s just, where do we want partisanship? Is it by the people who were elected by the people, or is it the insider baseball elections within the Bar Association?”
This article by Jason Hancock is published by permission of The Missouri Independent.