Worst Argument EVER for Ruining the Missouri Plan

Professor Bill Eckhardt has a history of engaging in misleading right-wing attacks on the Missouri Plan for selection of judges. I won't rehash the factual and logical mistakes he made in that failed attempt, other than to point out that it was embarrassing enough that the Dean of the Law School felt compelled to publicize her strong support of the Missouri Plan.

He's at it again, with the same batch of false logic and factual mistakes that characterized his earlier attempt. It's unworthy of a law professor, and it's almost unworthy of response. In the end, as I've said before, the Missouri Plan works well, and every single attempt to change the Missouri Plan is designed to increase the role of politicians and political consultants.

BUT - right at the end, Professor Eckhardt tosses in a doozy of an argument that deserves to be pointed out, if only for its intellectual, political and moral bankruptcy. Professor Eckhardt asks those of us who defend the plan that has served as a model for other states:

Are they not concerned that defeating HJR 10 could lead to a ballot initiative that would completely eliminate the Missouri Plan and move Missouri to something no one has asked for yet? Though a move to contested judicial elections — opposed by many of us — has not been proposed by reformers, others may be tempted if modest reforms fail.

If that is the case, the Missouri Bar and other opponents may look at a Missouri in which judges are directly elected and dream of the days when moderate reform was possible.

In other words, Professor Eckhardt is trying to convince us to abandon a successful system of judicial selection because if we don't, his side of the argument might do something really, really stupid - something so stupid that he opposes it, and nobody has even proposed it yet!

It is a sign of the desperation of those who hate our judicial system that they are resorting to hollow threats in an attempt to further politicize our courts.

Judicial Appointments for Grandma?

The Republican who headed up the backroom effort to treat Missouri License Offices like political plums instead of vital public services is back on the stump. This time, he's trying to make judicial appointments subject to the same kind of corrupt cronyism that marked fee offices under the Blunt administration.

Two days ago, I did a post entitled "No Idea is Too Stupid to Voice in Jefferson City - or to Win a Republican Majority", about a foolish and ill-thought-out plan to shift the tax burden of our state onto the working poor in mid-Missouri. The attempts to inject Missouri Senate politics into the selection of our judges deserves the same title, though.

Please keep these two points in mind, whenever you hear any discussion about the Missouri Plan for Selection of Judges - the Missouri Plan works well, and every single attempt to change the Missouri Plan is designed to increase the role of politicians and political consultants.

If you want a primer on the plan as it exists, please take a few minutes and read "The Complete Honest Truth about the Missouri Plan", which I wrote a year and a half ago when people were trying to inject more politics into the selection process.

This time around, the effort to corrupt our system is being led by the very same person whose cronyism caused the Missouri fee office appointment system to explode into an embarrassing scandal. He even gave one of the offices to his grandmother! (Perhaps she wants to be a judge now?)

This is one of the most important and troubling issues in Jefferson City this year, and even though it's complex and not particularly sexy, I urge you to educate yourself about the issue and encourage your Senator to preserve the Missouri Plan.

Congratulations, Judge Zel Fischer

The Missouri Plan worked again yesterday, as Governor Matt Blunt chose one of three well-qualified candidates as his final appointment to the Missouri Supreme Court. Judge Fischer has served on the bench in Atchison County since 2006, after having served his community in a solo law shop for years.

I've known Judge Fischer for years, and he is going to be a fine member of the Supreme Court. I say that despite the fact that he and I are worlds apart in politics. Zel and I worked together on the Missouri Bar Young Lawyers Section, which gave us plenty of opportunity to sit around in the evening and discuss our views on various issues (as well as share a few laughs). Suffice it to say that we saw things differently. Despite the disagreements, though, we shared a respect for the judicial system and its role in society.

It says something positive about Zel and his approach to conflict that I was always enthusiastically invited up to Rock Port for a round of golf and a good steak. We were never going to be best of friends, but he was open-minded enough to invite this city liberal up for a good time. I wish I had taken him up on the offer.

Zel Fischer is a true conservative and a good man. While I suppose I could complain that the Supreme Court seat should go to someone closer to my own political philosophy, I respect the fact that Governor Blunt gets to pick the judges. Besides, political affiliation matters much less to me for a Supreme Court judge than does quality of mind and fidelity to the job of applying law to the facts of the case in front of the Court.

Congratulations to Judge Zel Fischer. Congratulations to Governor Matt Blunt - you got yourself a true conservative who will serve the Supreme Court long after you have left office. Congratulations to the Supreme Court nominating committee - you sent the Governor a panel with three excellent choices.

Most of all, though, congratulations to Missouri - you have once again benefitted from the best system for judicial appointments in the United States - the Missouri Plan.

Looking Down Ballot - Judicial Retention Elections

While almost everyone in the State of Missouri knows how they will vote in the "big" elections, many of us get thrown off our game when we get "down ballot". It's easy to know who you're voting for at the President and Governor level, but when you get down to some of the propositions and the judicial retention ballots, it's easy to find yourself resorting to guesswork.

This year, Jackson Countians will face a list of judges and a decision on whether or not to retain each of them. The judges are as follows:

SUPREME COURT OF MISSOURI
Patricia Breckenridge

16TH JUDICIAL CIRCUIT (JACKSON COUNTY)
CIRCUIT JUDGES
Michael W. Manners
John R. O'Malley
Ann Mesle
Peggy Stevens McGraw
Kelly Moorhouse (Judge Moorhouse died earlier this week, but her name will be on the ballot. I'll be casting my vote for retention as a tiny tribute to a fine woman and a great public servant.)
John M. Torrence
Robert M. Schieber
Brian C. Wimes

ASSOCIATE CIRCUIT JUDGES
Robert Beaird
Vernon E. Scoville, III
Robert L. Trout

Unless you're a lawyer or a courthouse regular, you've probably never heard of most of these individuals. How should you vote?

Despite a wide variety in their backgrounds and experience levels, I encourage you strongly to vote in favor of each of these judges. The links on their names will direct you to the Missouri Bar's Judicial Evaluation of each of them, and they are an impressive lot. If you live in Missouri outside of Jackson County, you will have a different list of judges to vote for, and you can get those judicial evaluations, as well, at the Missouri Bar judicial evaluation website.

Even if you're going to simply take my advice and vote to retain each of the judges, I'd encourage you to take a few minutes and look at the evaluations. They will demonstrate to you just how well the Missouri Plan works.

The process is above traditional politics. By all rights under traditional politics, for example, I ought to be vigorously opposing Judge Breckenridge. She's a Republican - and she got her initial appointment from John Ashcroft, and her Supreme Court appointment from Matt Blunt. Those are the sort of credentials that ought to have a "yellow dog democrat" like me demanding to have her driven from office.

But she's a fine judge brought to us by a good process. People who know the law and the judges nominated her to be considered as one of three candidates for her position, based on her judicial temperament, legal ability and other factors aimed at picking great judges instead of great partisans. As a Missouri citizen, I sincerely do not care how Patricia Breckenridge the citizen votes when she casts her presidential ballot, but I care deeply that when she votes on cases in her job as Missouri Supreme Court judge, she does so on the facts and the law. As demonstrated by her outstanding scores in the evaluation process, a vast majority of Missouri lawyers, of all political persuasions, agree with me.

The same thing goes for all the other judges on this year's Jackson County ballot.

If you don't trust lawyers to evaluate the judges, though, I strongly encourage you to look at the juror evaluations. These are submitted by jurors (your peers) who have personally witnessed the judge in action. The scores are virtually unanimous that the judges listed have treated people equally and with dignity and were well prepared, etc.

I fully expect that each of the judges listed above will be retained by wide margins. Ironically, the opponents of the Missouri Plan will argue that those margins demonstrate that the voters aren't smart enough to be trusted to retain only the good ones. They are all good ones. The system is working. Go look at the thorough information available to you, and you can vote with complete confidence.

The Missouri Plan has given you an excellent set of judges. Retain them, and support politicians from either party who promise to retain the Missouri Plan.

Kinder has Multiple Scandals - Turns to Karl Rove to Help

Missouri has a bunch of great contests this year, and the Lieutenant Governor's race is one where we stand a strong chance of replacing a Republican incumbent with a great Democrat.

Peter Kinder, the incumbent, got caught up in a sex scandal when his Chief of Staff was arrested for having pornographic conversations with a cop he thought was a thirteen year-old girl. The police report is nauseating. Kinder drew himself into the fray by declaring, 3 hours after the arrest, that an investigation had determined state computers weren't used, and the criminal conversations took place during "comp time".

Bad enough? Yes, but there's more . . .

It turns out that people at the Chief of Staff level do not receive comp time, and computer experts are pointing out that forensic investigations of computers cannot be conducted in three hours. What we're seeing here is a little CYA.

Wait, there's more . . .

The person in charge of the office that supposedly did the computer investigation has now been hired by Peter Kinder as Chief of Staff to replace the pervy predecessor! Not only that, but that new guy is already under investigation for helping the one-term sitting governor violate Missouri's sunshine law by deleting public record emails.

Yes, there's more . . .

The Governor who has been hiding the emails has now left the country. That means that Kinder has the ability to release the emails and quell the scandal. Sam Page, the Democrat running against him, has called upon him to do just that, but Kinder has refused.

Instead, he's bringing in Karl Rove today, to speak at a $2700/plate fundraiser, and, presumably, offer some off-stage advice in how to juggle multiple scandals.

And, just in case you were wondering if that was all, there's (at least) one more scandal related to this sordid story. Kinder's campaign fundraising got rocked this past week by the explosion of a money-laundering scandal.

If you want to help Missourians replace their corrupt Republican Lieutenant Governor with a solid, ethical candidate who happens to be one of the nicest and best-qualified candidates I've met this election cycle, give his website a click and maybe even put some money in his kitty to offset Karl Rove's visit today.

Movement Toward a New Missouri Plan?

Revolution may be afoot in the Missouri Bar regarding the matter I raised on this page back a couple months ago. The Board of Governors is back from their plush vacation at Atlantis, a luxurious resort in the Bahamas. They have been surprised that many of their colleagues are upset about the fact that the Board of Governors paid for their expensive travels out of the dues that they impose on other lawyers.

The Small Firm Internet Group (SFIG) listserve is a feisty collection of "regular guy and gal" type lawyers who share their opinions freely, and it became a hotbed of criticism of the Board's imperial behavior. The lavish sojourn has them particularly upset as it comes on the heels of a healthy dues increase passed by the same Board of Governors.

The outcry has caused Keith Birkes, the executive director of the Missouri Bar, to pen a post to the SFIG (an unprecedented step, to my knowledge) defending the dues increase. Regarding the travel expenses, Mr. Birkes explains:

There are five meetings of the Board of Governors each year - four of them inside Missouri and one traditionally outside Missouri at the site of The Missouri Bar�s Midyear Seminar. Reasonable and necessary travel expenses are reimbursed to Board members for the in-state meetings, and an adequate per diem is set for the one out-of-state meeting of the Board of Governors to cover travel, meals and two nights� lodging. At the most recent Midyear Seminar, $1,100 was authorized each Board member who attended the meeting. Members of the Board of Governors annually give up a minimum of ten working days in order to attend to their responsibilities as an elected member of the Board of Governors and many of them devote 20 or more working days to attend to those responsibilities.

The use of the passive voice in describing the reimbursement amount is kind of amusing. The $1,100 trip "was authorized each Board member" by none other than the Board of Governors itself. For several years, the Board has had a Conflict of Interest policy providing that "It is the obligation of members of The Missouri Bar, its Board of Governors, Committees and Staff to fully disclose any conflicts of interest that they may have while acting on behalf of, or participating in, the decision-making process of The Missouri Bar", but no such disclosures appear in any minutes of the Board concerning reimbursement policies or budget discussions.

Now, to be crystal clear, the Board of Governors is an outstanding collection of individuals, and Keith Birkes, is the single most competent, ethical and wise executive director I have ever worked with in more than two decades of nonprofit experience. My discussion is not meant to be a personal attack on anyone. But the Board of Governors is making a terrible mistake in blowing Missouri money and their own political capital on lavish trips to exotic locales. That money could be far better spent on meetings supporting Missouri workers, and the money blown on airfare to the Bahamas could be better spent on educating our public on how the Missouri Plan for selection and retention of judges is a crucial element of "the administration of justice and the law on behalf of the public." That would be money well-spent.

Money Talks - Do We Want Our Judges Listening?

Among all the talk surrounding right-wing attempts to alter our Missouri Plan for judicial selection, one fixed truth remains: Every single proposal being bandied about by the opponents of the Missouri Plan increases the influence of money and partisanship. Everyone one of them. No exceptions.

Fortunately, we can look at other states and see what happens when we increase the role of money in the process. In yesterday's New York Times there is a disturbing article about the tendency of judges to vote in favor of those who gave them money. Rather than relying on anecdotes and rumors, the article reports on a statistical study that found, among other anomalies,

Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

When opponents of the Missouri Plan come talking about ways to increase the role of money and partisanship in our judicial system, keep this study in mind. Think about whether you think that our bench would be better if we had more money and partisanship involved. Think about whether, right now, you trust the wisdom of our Missouri Supreme Court more than the wisdom of our Missouri General Assembly.

What Kind of People Want to Change the Missouri Plan?

Blog CCP has an incredible and horrifying post about Representative Jim Lembke, the lead opponent of the Missouri Plan. If anyone in Missouri was tempted to believe that the Republican attacks on the Missouri Plan were motivated by anything other than a rabid desire to inject partisan politics into the courthouse.

Representative Lembke has a Republican buddy whose son getting an ugly divorce in Laclede County, and he wants to bully the judge. He's tried to get the judge impeached. He's written to her, even though he has no more official role in the case than you or I do, demanding that she remove herself from his friend's case. He's gone so far beyond the bounds of acceptable behavior that even his Republican cohort from Laclede County has called Lembke out on it, raising questions about Lembke's ethics and pointing out that "I feel its not our responsibility to look over a judge's shoulder every two or three minutes and make a claim they're using their bench for oppression."

Let's be crystal clear about what Lembke is trying to do here. He's trying to use political influence to help a buddy in court. He wants to make sure that his political friend gets what he wants. He wants politically connected people to get special favors. He wants the Judicial Branch to run on backroom connections just the way the legislature does. You scratch my back, I'll scratch yours.

Ironically, Judge Hutson is not even covered by the Missouri Plan. Judge Hutson was elected by the voters, as a Democrat in a county that went for Bush by a 2:1 margin in 2004. She's clearly a great judge and a fine person - she even has a Republican representative backing her up.

Lembke wants the judiciary to work the way the legislature does - dominated by money, partisanship and political influence. Do you?

Protect Our Courts From More Partisanship and Political Consultants

Normally, I'm cynical about online petitions. In this case, though, the people working to head off efforts to increase the influence of money and partisanship on our judicial selection need to demonstrate that they can reach and motivate a significant number of Missouri voters. Many of the political consultants in Jefferson City believe that this complex issue is over the heads of average voters, and that they can get away with injecting more partisanship into our judicial selection.

Now is the time to shape the understanding of those who want to undermine the Missouri Plan. Now is the time to let them know that a significant bloc of us are watching. Now is the time to let them know that their political football is a hot potato.

Please go here and sign the online petition. It's a rare opportunity to define the terms of an important debate and head off pointless fights. There are a lot of members of the General Assembly who are on the fence on this issue, and if they see that 1500 Missourians are watching, they'll back away from it now, before it really gets started.

Why Stop with Judges?

One of the main tactics of those seeking to undermine the Missouri Plan is to accuse its defenders of being anti-Democratic. After all, they argue, why shouldn't average voters play a larger role in choosing members of our bench? Why should judges be chosen by commissions instead of through the ordinary elective process, where political consultants and party politics can influence the result?

The argument makes a lot of sense. Despite the fact that we have a state legislature which performs at a level far beneath reasonable expectations (darn, I wanted to come up with a snappier description, but words fail me this morning!), and a Governor less popular than foie gras at a PETA meeting, we are expected to have confidence in our voters' ability to choose officers of the court wisely. After all, the folks down at the local diner are just as qualified to measure legal ability and judicial temperament as an experienced, non-partisan commission, right? Right?

Those of us defending the Missouri Plan argue that we want special skills and attributes in our judges, and that those qualifications are best considered in the current structure. Our opponents want to substitute partisan politics for that process.

My question is, why stop with the judges? If more partisanship is a good thing, why should we not apply similar standards to ALL important state offices? If they really think we've been so wonderfully successful in choosing a great General Assembly and Governor, let's expand the process even further.

One of the most vocal opponents of the Missouri Plan, and most ardent proponents of more partisan influence in the process, is Professor Bill Eckhardt. A quick check in the Missouri "Blue Book" reveals that he has been appointed to be a Professor for our fair state, for which he is paid a reasonable sum of money. I sincerely like Professor Eckhardt, and think he's a good professor, but do you remember ever voting for him? Why should we entrust the important job of teaching our law students to someone chosen by an elite panel of law professors? Not only are there no elections held for law professors, there aren't even any commissions including lay people! Really! Can you believe that an opponent of the Missouri Plan would participate in such a non-Democratic scheme??

But I don't mean to pick on Professor Eckhardt. Truth is, the non-Democratic scheme used to choose him worked tremendously well, and the State of Missouri has chosen and retained a fine man and a great professor without public elections or partisan politics.

But if the position of the Missouri Plan opponents is that we NEED partisan politics to choose our judges, I think they ought to expand their scope.

Let's choose a professor of neurosurgery based on how well she shakes hands at Lincoln Days. Please, don't squeeze too hard!

Let's choose Mizzou's coaches at the polls.

How about the Senate Chaplain? What could be a more important role than setting our Senate right with God? How can we allow a system that chooses such an important role without public input? I think we ought to have a full primary system among the various denominations in the state, with a final run-off election among the top 4 vote-getters. What a wonderful and dignified process that could be for our state, and what a way of showing how committed we are to democracy, to have an election among the religions!

Those of us who support the Missouri Plan realize that different positions require different levels of political involvement. Choosing our judges is a process where partisan politics ought to be kept to a minimum, and judicial independence is an important goal. Every single proposal being bandied about by the opponents of the Missouri Plan increases the influence of money and partisanship. Do we really want that? If we do, then I'm running for Coach of Mizzou basketball - he gets the best seat in the house . . .

Matt Blunt Makes a Great Choice

I'm surprised and pleased by Matt Blunt today. He appointed Alok Ahuja to the Missouri Court of Appeals for the Western District to fill the spot created when he put Judge Patricia Breckenridge on the Missouri Supreme Court. I have known Alok for years, and he is widely recognized as one of the smartest and most thoughtful attorneys in town. He embodies what an appellate judge ought to be - incredibly smart, rigorously analytical, and intellectually creative.

While I am sure that Governor Blunt was influenced by the Republican connections of the Lathrop & Gage law firm, including "Mr. Kansas City" Jack Craft and a young woman by the name of Amy Blunt, I take my hat off to Governor Blunt for stepping outside the bitter partisanship that has lately surrounded judicial appointments, and appointing the best person for the job, even though that person happens to be a (very moderate) Democrat.

Wow.

I am sincerely impressed with Governor Blunt tonight.

And pleased for Alok, and the state of our Judiciary.

The Complete Honest Truth About the Missouri Plan

I had a friendly conversation with a journalist a while back, and the topic briefly turned to the Missouri Plan. "Can't you make the Missouri Plan interesting?", I asked her. She shook her head no.

Today, I had an email exchange with a journalist who covers the courts, and his confusion about the Missouri plan was as complete as it could be, but it was innocent confusion. He really didn't understand some of the basic points, and, in his confusion, he had some very flawed perceptions.

What follows is my attempt to lay it all out. If the topic bores you, skip this post. It's not a particularly fun topic, and any honest analysis, as this one will be, cannot help but be complex and qualified. I'm not going to make strident points or state my opinions more forcefully than they deserve solely to win rhetorical points.

And I'm not going to allow comments on this one post. If you have honest questions or you want clarification on something, email me and I will do my best to respond. If you find a factual error, please email me and I will make any necessary correction. But I'm not going to allow half-baked conspiracy theorists or unstable, misguided souls to turn this into a cacophony of lies and half-truths. If you disagree with some of my conclusions or opinions, I wish you the best in finding another soapbox.

What is the Missouri Plan for Judicial Selection?

The Missouri Plan is a system for selection of judges and deciding whether they should hold onto their offices. Some call it the Missouri Non-Partisan Court Plan, but I prefer the simpler and less confusing "Missouri Plan", as there is plenty of partisanship in any system of judicial selection. Missouri has three levels of state courts - the trial courts (Circuit Courts), the Appellate Courts (divided into 3 districts), and the Supreme Court.

The Trial Courts: Most trial judges in Missouri are elected. They participate in regular elections, with campaign signs and the whole kit and kaboodle. But, because they are only judges for a particular circuit (usually 2 or 3 counties - it depends on population), the campaigns are relatively modest affairs. You don't see massive TV budgets or major campaign contributions. Many, or most, local lawyers donate to both sides in a close race.

It's important to recall that there are a lot of other judges in Missouri that are not part of the Missouri Plan. Federal judges make a lot of headlines, but they get appointed under the Federal system, with its Senate approval process. Federal judges get lifetime appointments, and face no retention elections. There are also municipal judges - employed by municipalities to handle traffic tickets and ordinance violations. The systems for choosing them vary widely - the Kansas City judge who got caught taking loans from lawyers was not a Missouri Plan judge.

In St. Louis City and Jackson, Platte, Clay and St. Louis Counties, the judges are chosen through the Missouri Plan. The last three listed changed to the Missouri Plan in the 1970s, when the voters chose to forego elections. In each of the Missouri Plan circuits, judicial nominations are made commissions composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. Thus, three of the panelists (the appellate judge and the citizens) are chosen by governors at one point or another, and two are selected by lawyers.

Appellate Courts: There are three Courts of Appeals in Missouri. One covers the Eastern and Northeastern counties and normally meets in St. Louis, one covers the Western and Northwestern counties and normally meets in Kansas City, and one covers the Southern part of the state, and normally meets in Springfield. Appellate judges don't try cases - they read briefs, listen to oral arguments, and write opinions.

The Supreme Court is the highest court in Missouri. Most of its work is reviewing cases where the one of the Appellate Courts has already made a decision. If the Appellate Court was way out of line with its decision, or if the Appellate Courts issue differing rulings on the same issue, then the Supreme Court might choose to take a case and issue a ruling.

The nominations for the Courts of Appeals and the Supreme Court are made by a commission composed of three lawyers elected by lawyers, three citizens selected by the governor, and the chief justice, who serves as chair. Each of the geographic districts of the Court of Appeals must be represented by one lawyer and one citizen member on the Appellate Judicial Commission. The elections for the lawyers are low-key affairs, with most of the campaigning taking the form of simple letters written by the candidate or his or her supporters and mailed to lawyers in the district. There's not any fundraising or aggressive campaigning - the lawyers elected are generally people who have built up a good name among their fellow attorneys. I've never seen a lawyer mention a party affiliation in his or her mailings.

Each of the commissions comes up with a panel of three nominees, and the governor gets to choose one of them (if he doesn't, the commission gets to do it). The commission is where a lot of the magic happens. I wish I could claim that the commission makes its choices solely on merit, regardless of polltics or influence, but that would be a lie.

If it's not all merit, what else is there? Well, part of it is definitely political connections. But it's kind of funny - you don't want to be too political. 95% of the time, it's best to be someone who's worked on a few campaigns in the background, but nobody too controversial. You want to be the sort of person that, should you make the panel of three that gets submitted to the governor, you'll have a few friends who are well-connected to the governor call or write the governor on your behalf. But you don't want to be the kind of person that, should the governor select you, he will be making enemies, or creating the appearance that he has appointed a political hack.

I don't want to understate the good faith of the governors, either - including the current governors. A judicial appointment is likely to be on the bench a good long time, long after the Governor will have left office. You want to appoint people who reflect your values and will do so ably. A half-wit party hack doesn't fit that description, so governors do seek people they sincerely believe are qualified and able to persuade others that their rulings are correct.

What is the Missouri Plan for Judicial Retention?

This is pretty simple. At the first election after a newly appointed judge has served a year, s/he is put on a ballot for a simple yes or no retention. They don't have opponents, and they aren't listed by party. If they win a majority, and I don't believe anyone has lost an initial retention election, they get a full term before facing another retention election. Supreme Court and Appellate Court judges have 12 year terms, and Circuit Court (trial) judges have 6 year terms.

These are pretty bare-bones elections. Judges are bound by a judicial ethics to NOT do a lot of typical campaigning, but, on the other hand, they don't have much need to do so when they aren't facing an opponent.

The Missouri Bar and League of Women Voters distribute voter guides before retention elections, including evaluations of judges on the basis of things like fairness, legal analysis skills, diligence and decisiveness. Lawyers and jurors do the evaluations, and they often have some surprising results. I know that the judges study their results carefully, and often use them as a kind of job evaluation to identify their perceived weaknesses.

How Well Does the Selection System Work?

In my opinion, we have a fantastic bench in Missouri, and much of that is due to the Missouri Plan. I say that as someone who knows a lot of judges, has some experience in the courtroom and appellate courts, and no longer appears before judges, so I don't have a lot of incentive to pull my punches. (I should point out I've appeared in front of good elected judges in Missouri, but I've always been underwhelmed by the elected judges in other states, where the elections are high-financed affairs.)

The strength of the bench is not a figment of my Democratic leanings, either. Back when I was a young lawyer, the Missouri Supreme Court was 100% composed of appointments by John Ashcroft, and I never heard (or made) a peep complaining that we needed to change our judicial appointment system. Ray Price, as Republican a man as I have ever met, remains one of my favorite people I have ever known to put on the black robes. Judge Ann Covington was wonderful. Judge Elwood Thomas may have been the best judge in the history of the state, though sad fate prevented him from proving it. The only person I thought at the time was a weak pick on the Court, Chip Robertson, turned out to be a fine judge.

At the trial and appellate level, there have been several judges that I thought should not have been appointed. In a couple cases, my original perception remains. There are a couple judges who I think have too much of a plaintiff's orientation, and a couple I think have too much of a defendant's bias. But, despite those instances, I always felt 100% confident that the judges were playing things straight. There's never a sense in Missouri courts that "the fix is in".

How Well Does the Missouri Plan Retention System Work?

As written here before, the retention system works, though it might not feel like a "real election". I saw Judge Hutcherson get knocked off when it was deserved. Frankly, I haven't seen any other judges that deserved to lose. The selection process works, so the retention process shouldn't be generating a whole lot of heat and controversy. I heard Chip Robertson point out that the only baseball umpire that most Missourians can remember is Don Denkinger - the good umpires, like good judges, don't generate a lot of attention for themselves.

Which also raises another important factor for judges - the necessity of making unpopular decisions makes them susceptible to unfair election pressures. If you are unfairly accused of a crime, do you want to face a judge who wants to make "tough on crime" his or her campaign slogan? Similarly, is it fair to ask a judge to throw out a coerced confession in a rape case if s/he is going to be up for an election a month? Justice is not always popular, and elevating popularity as a qualification for judges in our cities will not serve the public interest.


What are the Alternatives?

That's part of the problem - the Republicans are playing hide and seek with their plans. Some advocate for more elections, some want "advice and consent" of the legislature, and some want to give the governor more opportunity to stack the commission. It's impossible for me to fairly address the benefits and weaknesses of any specific plan with any specificity.

One common thread, though, is that all the proposals I've seen increase the influence of political parties and money on the process. While that's an accepted part of the process for the other two branches, the judicial system is different. The judicial system relies on the perception of fairness to justify its existence. We accept and expect partisanship in our state house and governor's mansion, but it is anathema to the Courthouse.

Conclusion

The Missouri Plan works well as a means of selecting and retaining judges. It has served our citizens through the time of the Ascroft court and it continues to serve today. The agitation for change to the plan does not arise from any dissatisfaction with the judges on our bench. Republicans don't really want to see Judge Coe in Kansas City. But I believe that a minority of Republicans think that they can drive some uninformed voters to the polls to vote against "activist judges", and a few others sincerely believe that "democracy" is the best way to select legal specialists (though I doubt they would select heart surgeons or plumbers based on political campaigns).

As my journalist friend acknowledged, this is not a fun or interesting issue. But it is a wildly important one. Not because I particularly care about the judges themselves - they could find other jobs if they needed to. But I care deeply about whether the courts in Missouri will continue to work as well as they currently do. I worry about political consultants playing a larger role in our judicial system. I worry about losing the perception of fairness in our courts, and I worry about losing the reality of fairness.

What we have works. Every alternative being pressed by the Republican political consultants will increase the role of money, political partisanship and political consultants. I don't want to give political consultants a bigger role in our judicial system. I don't want our courthouse to resemble the City Council.

Who does?

The Bar Needs a New Missouri Plan

As regular readers know, I am a vocal supporter of the Missouri Plan, and I oppose the Republicans' attempts to use our system of judicial selection and retention as a wedge issue. So, let's be clear - I like our Missouri Plan.

On an unrelated issue, though, I think the Missouri Bar needs to recommit itself to Missouri and Missourians. Did you know that in late January, the Missouri Bar will be hosting an official meeting, complete with a meeting of its governing body, the Board of Governors, outside of Missouri? And not just outside Missouri, outside of the United States!

Allow me to quote from the Missouri Bar's website:

As January's freezing temperatures grip Missouri, The Bahamas expect sunny skies and warm days, perfect for golf, shopping, relaxing on the beach, and sightseeing. Located near the capital city of Nassau and just a short hop from Florida, Atlantis is an exhilarating adventure of thrills and discoveries amidst the tropical splendor of the Caribbean. Take advantage of CLE in the morning, with afternoons and evenings free to enjoy all this paradise has to offer.

And in case you're wondering if they're serious about "CLE (continuing legal education) in the morning, yes, the latest they even offer seminars is 11:30.

Why is a Missouri quasi-governmental body channeling its dollars to The Bahamas? Why, at a time when it is working so hard to represent the best interests of the average Missourian through its defense of the Bar Plan, is the Missouri Bar leaving Missouri behind for an exclusive resort in The Bahamas?

The resort they are visiting is named Atlantis - after the mythical island that sunk into the sea. Perhaps the Missouri Bar will take the hint and sink this tradition of using its Mid-Winter meeting as an expensive tax deduction for its wealthiest members.

Missouri Plan II ought to be a commitment to hold Missouri Bar meetings in Missouri.

Tired of My Missouri Plan Posts?

I've been outspoken about the right-wing attacks on the Missouri Plan. To sum up, the attacks are misguided at best, and an example of the worst spawn of right-wing partisan hardball aimed at bringing the independent judiciary under the control of party bosses at worst.

Tomorrow evening at 6:30, the Committee for County Progress will be hosting a forum on the Missouri Plan, featuring Dale Youngs providing a history of the Plan, former Missouri Supreme Court Chief Judge Chip Robertson (appointed by Ashcroft) defending the Plan and Professor Bill Eckhardt criticizing it. It will be held at Professor Eckhardt's home court, the the courtroom at the UMKC School of Law, and admission is free.

It should be a great forum - I hope that you'll consider coming out and hearing views from somebody other than me . . .

A Partisan Decision? A Cleansing of the Record?

One of the rhetorical tricks used by the partisans who want to ruin the Missouri Plan is to challenge those who support it to find a partisan decision by a non-Missouri Plan judge. Of course, in Missouri, those decisions are made by circuit courts, whose decisions don't get published, so it's a bit of a false challenge, but they're kind of desperate for arguments, so they use what they can.

In responding to a comment I probably should have ignored, though, I recalled that Jeff Roe had claimed that his attacks are causing judges to alter their opinions. I went in search of the article, but I couldn't find it. It appears to have been deleted - perhaps a way of clearing out an inconvenient acknowledgment that partisan politics should stay clear of the bench?

Fortunately for those of us concerned about the courts more than about wedge issues, google cache provides the smoking gun:

September 19, 2007
Is Conservative Criticism Correcting the Courts?

Two recent court decisions out of Jefferson City give The Source hope…but not much comfort…that our state justice system may be coming around. The decisions, both by Cole County Circuit Judge Richard Callahan, upheld legislative action and a maintained a strict reading of the state’s constitution. Callahan, who had offered more liberal interpretations of the constitution in the past, used sound judgment in limiting the court’s role in setting policy.

In the first decision Callahan used the constitution’s precise language and recent legislative history to rule that Missouri’s schools were receiving adequate and fair funding. In the second ruling regarding MOHELA funds, Callahan again used legislative intent as a basis for his ruling saying that not allowing the legislature to decide where public funds could be directed would be “novel”.

The Source would note that it is not the result of the decisions which gives us hope, but how the decisions were made. Callahan, bucking recent trends, recognized the power of the legislature to write law and recognized the limits on the court to re-write it.

Unfortunately, Callahan’s decisions could be overturned by judges at a higher level who have not yet learned the lesson Callahan seems to have learned. Given the recent controversy surrounding judicial nominations, The Source has to wonder if political favor, and not the Missouri Constitution, will ultimately win the day.

Missouri Plan - Retention Elections Work

One of the common arguments employed by the people who would scrap our model system for choosing judges is that the retention elections are ineffective. Judges typically garner over 60% of the vote in favor of retention, even though, they argue, that the typical voter could not identify any of the judges on the ballot. The votes are therefore meaningless and uninformed.

Of course, this argument ignores the fact that bad judges have lost their retention elections.

Even if you ignore the true facts and accept the flawed premises, though, the argument is invalid. Here's why:

1. High retention rates reflect high general satisfaction with the judicial branch in Missouri. Even accepting that the voters might not know all the names on the ballot, the Missouri bench is one of the strongest in the nation, with a well-earned reputation of producing logical, well-reasoned handling of difficult cases. When judges are doing their jobs well, there's no reason a typical voter would or should know their names. If judges were making crazy, "activist" rulings, we would hear about them. In the case of judges, no news is good news. If a judge winds up a celebrity, and his or her name is on the mind of typical voters, that reflects trouble.

2. Voters receive good, solid information on judges - the fact that it does not penetrate their minds to the extent that they remember all their names doesn't mean they are not casting informed votes. The Bar Associations aggressively distribute survey information about the judges - information compiled from attorneys who have appeared in front of them (roughly half of whom have lost!), and jurors who have served in their courts. This information is incredibly helpful. It's also almost always very positive, and we all know how dull good news is. But if there were a judge listed with atrocious approval ratings, you can bet people would remember the name!

3. The fact that our judges get overwhelming approval doesn't mean our voters are dumb - it means that our judges are good!

People like Jeff Roe want to take the Missouri Plan away from those of us who are pleased with our judicial branch. They will try to fool us with illegitimate arguments and false "truths". As shown here, though, even when you accept their claims as truthful, their logic does not hold up. The Missouri Plan has resulted in a bench that Missourians overwhelmingly approve of. Would you really rather trade that in for a bench that is as popular as our legislature, or Governor Blunt?

Alex, I'll take the Missouri Plan for 20 Million Dollars

Blog CCP has an important post up about a Michigan Supreme Court judge appearing at a Republican fundraising breakfast seeking his share of the twenty million dollars that insiders are expecting to spend on a partisan election campaign for his seat.

Here in Missouri, our Supreme Court judges don't have to ask lawyers, insurance companies and corporations for millions of dollars. Instead, they are chosen by the Governor from a group of three nominated by a bipartisan panel of attorneys and non-attorneys. It's a system that has worked so effectively that voters consistently choose to retain those judges.

Let's keep our way.

Missouri Plan, Wedge Issues, and "Someone's Gonna Get Their Eye Put Out"

As written here before, the Republican efforts to undermine the Missouri Plan are simply the latest cynical attempt by political insiders like Jeff Roe to create a wedge issue. Informed, thoughtful voters on both sides of the aisle recognize that further injecting electoral politics into judicial selection will undermine the independence of the judiciary, to the disservice of all. But certain political insiders care less about the damage done to the state's legal system than they do about driving mobs of misinformed Neanderthals to the polls intent on driving out the "activist judges".

Whenever the rough-housing among her six children would begin getting rough, my mother would warn, "It's all fun and games until someone gets their eye put out." It was her wise way of encouraging us to look down the road and see how escalation of nudges to pushes to shoves to pokes was going to lead to an all-out donnybrook. As the youngest boy, I learned to appreciate the warning, since I usually came out the worst for the wear.

Folks, wedge issues are all fun and games until someone gets their eye put out. I understand that those of us who enjoy politics enjoy the prospect of a good wedge issue. I'll agree that the point of the minimum wage issue on the ballot in 2006 was only partially about raising hourly rates for workers - it was also about portraying the Republicans as heartless class warriors keeping the little guy down. Similarly, only a few of the originators of the gay marriage amendment in 2004 really cared about gay marriage - it was mostly about getting fearful conservatives to the polls.

Some people came out of these earlier scrapes with some bruises, but no eyes were put out. Fast-food restaurants have managed to avoid the economic apocalypse they feared, and the gay community lost a right it never had in Missouri.

But this time the inter-party rough-housing is threatening to put out an eye. We've had a judicial selection process that has worked for decades, through Republican governors and Democratic governors. It was good enough for Governors Carnahan and Teasdale, and it was good enough for Governors Bond and Ashcroft. We don't have nasty, expensive campaigns funded by trial lawyers and insurance companies for Supreme Court judges, the way they do in some other states, and we don't want them.

Yesterday, I received the following press release from a group dedicated to preserving the Missouri Plan. I'm reprinting it in its entirety, because I think it's an important issue that all Missourians need to pay close attention to.

Coalition Names Six Former Chiefs as Honorary Co-chairs as List of Member Organizations Continues to Grow
FOR IMMEDIATE RELEASE
Tuesday, October 30, 2007

JEFFERSON CITY — Following a summer fraught with criticism of the method by which a slot on Missouri’s Supreme Court would be filled, six former chief justices of the Court have joined an organization formed to protect Missouri’s nonpartisan court plan and preserve the independence of the judiciary.

“Having served as chair of the Appellate Judicial Commission during my tenure as chief justice, I know the plan works to keep politics out of the judicial selection process,” said John Holstein in agreeing to support Missourians for Fair and Impartial Courts. “It troubles me that there are forces at work intent on injecting politics back into the process.”
Holstein, an appointee of Gov. John Ashcroft who served on the high court from 1989 through 2002 and as chief justice from 1995-97, joins five other former chief justices who have agreed to serve as honorary co-chairs for Missourians for Fair and Impartial Courts.
The other co-chairs:

* The Honorable Jack Bardgett – appointed by Gov. Warren Hearnes (D), served as chief justice from 1979-81.
* The Honorable Ann Covington, appointed by Gov. Ashcroft (R), served as chief justice from 1993-95.
* The Honorable Andrew Jackson Higgins, appointed by Gov. Joe Teasdale (D), served as chief justice from 1985-87.
* The Honorable Edward “Chip” Robertson, appointed by Gov. Ashcroft (R), served as chief justice from 1991-93.
* The Honorable Ronnie White, appointed by Gov. Mel Carnahan (D), served as chief justice from 2003-05.


“As former chief justices of the Missouri Supreme Court, we believe that Missourians depend on fair and impartial courts to provide stable and rational resolution of disputes, protect property and economic interests, and, when needed, protect people from the overreaching of government,” said Covington, the first woman to hold the position of chief justice on the court.

Through their involvement with Missourians for Fair and Impartial Courts, the former chiefs will advocate for Missouri’s courts to remain accountable to the constitution and the laws of the state — not political pressure and special interests. For nearly 70 years, Missouri has been a model for the nation, creating a nonpartisan method for selecting judges that nominates judicial candidates based not on political party affiliation, but on merit. They are devoted to protecting Missouri courts from attacks by a small group of politicians and special interest groups.

“Unfortunately, Missouri’s highly respected nonpartisan court plan is under attack by special interests who believe that some other process – some politically-driven process – would produce judges of the same quality that now serve Missouri’s citizens as the final arbiters of the law,” said White, who retired from the court in July. “Justice should be fair and impartial. The Missouri Nonpartisan Court Plan should be preserved to protect our individual rights.”

As the six former court chiefs join forces with Missourians for Fair and Impartial Courts, membership in the broad-based coalition continues to grow, including nearly 40 business, education, religious, professional and consumer groups such as AARP Missouri, Missouri National Education Association, Committee for Economic Development and the Missouri Municipal League, in addition to a number of legal organizations.

“Our diverse membership proves that this isn’t an issue that matters only to attorneys and judges,” said Landon Rowland, Committee for Economic Development trustee. “Our system of judicial selection seeks the best qualified judges while maximizing independence and still allows a degree of direct accountability to Missourians.

“There’s a reason so many other state governments have adopted parts of the Missouri Plan – because it works.

It's Not About the Judges

One of the bits of "wisdom" that both parties have picked up on over the past decade or so is the importance of "wedge issues" to excite "their" voters and get them to show up at the polls on election day. The ideal wedge issue is one that your people are passionate about, but the other side is less interested.

The battle over the Missouri Plan is a wedge issue.

Stem cells are a decent example. If you believe that stem cell experimentation is murder, you are motivated to show up at the polls and save lives. If you believe stem cell research is simply a promising area of medical advancement, the accepted wisdom is that you're less motivated to get up and vote. Preventing murder with God on your side ought to generate more votes than supporting a bunch of nerds in lab coats doing stuff you don't really understand. So, if you want religious conservatives to show up at the polls, put stem cells on the ballot as a wedge issue. Other examples include the minimum wage, gun control and gay marriage.

This year, the Republicans are relying on activist judges instead of stem cell-murdering scientists to get their voters to the polls.

They've started laying the groundwork for their attack on the Missouri Plan already. They've tried to paint Chief Justice Laura Stith into a corner by making silly requests for meaningless documents. They've tried to falsely accuse the Nominating Commission of being "secretive". They've run billboards raising the specter of "activist judges", without being able to name a single Missouri state judge who qualifies for that flexible label.

The funny thing is, life without the Missouri Plan would be worse for all of us, Republicans and Democrats. That's why we're seeing Republican ex-judges and lawyers doing their best to stop this wedge issue. That's why Republican ex-Chief Justices have come out in favor of the Missouri Plan. That's why Lathrop & Gage evicted Jeff Roe from their offices after they started to get calls questioning their smelly alliance with the loudest opponent of the Missouri Plan.

Now, imagine for a moment that you are a conservative republican (I hope that's a stretch for you). Think for a second about having elected judges interpreting our laws and running our courtrooms. Think about the scoundrels and rascals those democrats have gotten elected statewide in the past, and think about the trends in republican popularity. Think about Chief Justice Bob Holden running our Supreme Court. Think about who would get elected to be our trial judges in Kansas City and St. Louis - where most big trials happen. Do you want Judge Coe handling your divorce?

Nobody intelligent really wants the Missouri Plan to go away. Not even Jeff Roe. But they are willing to risk damaging Missouri's judicial system for a one-time shot at motivating some ill-informed voters to the polls so they can vote against non-existent activist judges.

Let's hope that those who care about our judicial system more than about the next election win out.

Danny Gibbons on Koster, Missouri Plan, and AG Tensions

A friend of mine was flying home from St. Louis the other evening, and found herself seated next to two brash young republican types. What follows is her account of her enlightening trip, enhaned only by my bolding of my favorite parts:

The kid by the window starts giving his compatriot a crash course in Missouri politics, and I can't help but overhear him. Turns on that he first goes on to say what a huge deal for Republicans in Missouri the Chris Koster switch is, and how everyone in the Republican party is just shocked. He goes on to say that Koster had this big problem with wanting to support stem cell research which "isn't a Republican issue", but that Koster had been a good Republican soldier for Medicaid cuts, and MOHELA, and all that, so basically they are all just shocked. He then goes on to posit that the real reason Koster left the party is that he is worried about running for MO AG against the kid's dad in the Republican primary, which is when I figure out that the kid is Danny Gibbons, 20-something son of Michael Gibbons, the illustrious Republican President Pro Tem of our state senate, if it even deserves that title anymore.

The kid then turns his attention to the recent Supreme Court panel, where he states that the whole deal was totally unfair, because the best candidate who had applied, and whom our illustrious governor had clearly indicated that he expected to be on the panel, is the kid's dad-Mike Gibbons again. He says that the Repubs are all in shock and anger that Gibbons didn't make the panel after the governor indicated that he wanted him on the panel, and the fact that Gibbons didn't make the panel is proof that the system doesn't work, and that the selection is not non-partisan. You would have been proud of me; I did not jump into the conversation to point out that failing to put a guy on the panel for the Supreme Court who is barely a practicing lawyer, let alone isn't a judge, and who apparently doesn't really have much of a commitment to the position, since he is running for Attorney General at the same time, can hardly be considered partisan, but I just keep listening, in awe and horror, as the kid goes on to try to explain that this is what is wrong with the Non-Partisan Court plan-it clearly is partisan because the sitting governor can't get any political hack appointed to the Supreme Court at the snap of his fingers. The kid then goes on to say that Blunt is not going to appoint anyone from this panel, and that the Repubs plan to use this as a big campaign issue.

The kid then goes on to say some more interesting stuff, like that his mom doesn't really want his dad to run for AG, because she doesn't like Jeff City and because she doesn't want to have to give up her job, and she makes as much as the dad.

So, it appears the Republicans are going to refuse to appoint any of the three highly-qualified attorneys on the current panel (including a Republican Ashcroft appointee) and try to use the Missouri Plan as a wedge issue to drive zealots to the polls, and it appears that they are shocked that a "good Republican soldier" like Koster defected over stem cells, which is "not a Republican issue" - just another wedge issue they use.

Normally, I dislike people who talk loudly on planes. Sharing your insider political knowledge with a planeload of people is rude, and not necessarily wise.

UMKC Law Professor Engaging in Misleading Right-Wing Attack

With that headline, you'd expect to be reading about Kris "K" Kobach, but, this time, it's Bill Eckhardt. Bill's a gentlemanly, intelligent, rational person. That's why I was so surprised to see this article in the Southeast Missourian by Bill and a corporate lawyer/Republican donor from St. Louis. The article is illogical, misleading and a sneaky attempt by the right wing to give political hacks like Jeff Roe a major role in making our court system just as dysfunctional as our General Assembly.

First, a little background. Missouri has a system for selecting judges that is a model for the United States. It applies to urban trial judges, all appellate judges, and the Missouri Supreme Court. Rather than having elections, those judges are selected by the Governor from a panel of three chosen by a commission composed of lawyers and lay people, based on merit. After the judge is appointed, he or she stands for retention by the voters in the following general election, and every dozen years thereafter. Simply stated, the system works well. Missouri has one of the best state benches in the nation.

Bill Eckhardt wants Missouri to throw out this elegant blend of democracy and merit in favor of PACs, smear campaigns, and attack dogs like Jeff Roe. He would rather have a Supreme Court that functions like the General Assembly cesspool than a courtroom.

His article in favor of this foolish position is a curious blend of deceptive logic and outright factual mistakes. It would be disappointing to see such debased work from a first-year law student - it is shocking to see it from someone who is supposed to be teaching those students.

Perhaps the silliest and most glaring instance of sloppiness is Eckhardt's flawed assertion that:

The commission has seven unelected members: three lawyers chosen by the Missouri Bar Association, three nonlawyers chosen by a governor (past or present, depending on the expiration of a commission member's term) and the chief justice of the Missouri Supreme Court (also usually a member of the Missouri Bar Association).

First off, there is no "Missouri Bar Association". The Missouri Bar is not a voluntary association - it is the quasi-governmental organization composed of ALL practicing attorneys in the state of Missouri. It is not some politically-biased interest group, and Professor Eckhardt ought to have enough familiarity with the governance of Missouri lawyers to know better.

The foolishness of this decidedly non-professorial mistake is illustrated by the claim that the Chief Justice of the Missouri Supreme Court is "usually" a member of the "Association". Usually? Bill, Bill, Bill - you should be ashamed of yourself.

The flawed facts are nothing, though, compared to the flawed logic. Eckhardt claims that the fact that only two judges have lost retention elections demonstrates that the system isn't working. Instead, it is clear proof that the system is working brilliantly. If we were getting bad judges through the Missouri Plan, voter discontent would show itself, wouldn't it?

Any sharp-eyed law student would catch the fallacy in Eckhardt's next weak argument:

The people of Missouri no longer support the plan. A recent survey reveals that most (two-thirds) of Missourians do not know how the plan works. A stunning 87 percent are unaware that the Missouri Bar Association helps pick the appellate judicial commission. A majority disagree with the retention election model and believe voters should have the greatest input on who serves on the Supreme Court.

Anybody want to bet who paid for it, or who carefully phrased the questions to support the attack? Eckhardt would have us toss out our Missouri Plan based on an obscure poll of voters who do not know how the system works. Notice that Eckhardt is silent about what those who do know about the Missouri Plan think. Those who do know about it support it with a rare degree of agreement - whether Republican or Democrat, lawyers support the plan.

As stated above, it is disappointing to see any lawyers attack one of Missouri's greatest contributions to jurisprudence. If an attack were to be made, though, it's not surprising that it would come from a St. Louis corporate attorney (who never goes to court) and from a law professor on his ivory tower. It is surprising, though, how sloppy and illogical their well-paid attack turned out.

We are blessed to have a system that works. Do you really want to trade it in for a bunch of politician/judges winning your votes with robo-calls and smear ads? Do you really think that would be better?