When a people choose vindictive self-service over broader public concern, they make an eventually correctible mistake.
When Congress replaces responsibility for the many with loyalty to one, a nation is in trouble.
When courts replace justice with ideology, a nation might be lost.
We live in and often must endure our own humanness. But there are protections that we must trust within our political system that keep our mistake from becoming our destruction.
This is such a time.
The current administration has attacked the courts and the “unelected judges” who are overturning unconstitutional executive orders, preferring that the court system get out of the way. We can be grateful that our founders made the court a road block to injustice.
Elected? The dangers of an elected judiciary were on plain view in Wisconsin a few days ago where an effort was made to buy a seat on the state supreme court for someone designated as a Trump supporter who would tilt the court majority politically toward Trump.
It has become obvious to many within the last few days that they were mistaken when they accepted without question the promises given last year by Donald Trump. Now, they must place their hope with a Congress in which some are beginning to question their loyalty to him and wonder if they have the courage to remember their responsibility.
In the end, though, it is the courts that have the ultimate responsibility for saving our nation.
The courts cannot completely nor immediately reverse the course set by the mistake. But the courts are our ultimate and final refuge—
—-which is why the recent Wisconsin Supreme Court election was so critical, not just for Wisconsin, but for all of us; not just because of WHO was elected but because of WHAT was rejected.
History has shown liberal or conservative-tilting courts are not always as clearly divided as the labels we attach to their individual members seem to indicate they will be. There is a middle ground that often is the resting place for compromise on carefully designed decisions. And it is that middle ground on the finest points of a case that might produce no major progress but will save us from any major regression.
Missouri originated a system that avoids the fight we recently saw in Wisconsin that featured a concerted effort to buy a seat on the Supreme Court. It is regrettable that we still allow people to try to buy part of our state constitution by financing multi-million dollar petition campaigns (last year’s sports wagering campaign in which the casino industry spent more than $40 million to get 3,000 more people to vote for sports wagering than voted against it after a misleading campaign is an example) and they can bankroll candidates for the legislature in an effort to buy laws.
But because our highest court judges are not elected, they cannot be bought.
Chief Justice Laura Denvir Smith, who also was the Chair of the Appellate Judicial Commission, told the Missouri Senate Rules Committee in 2007:
Judges are not intended to be politicians, choosing sides based on political considerations, or what the judge’s neighbors, fundraisers or special interest groups might think was best. Deciding cases based on the judge’s or another’s perception of what is popular or politically expedient is inconsistent with one’s duty as a judge and is just plain wrong.
The judicial branch of our democracy instead must be neutral, seeing that the laws are applied fairly, and providing stability in the law so that there is consistency in the rules by which people live their lives. Although some court decisions are not popular, popularity is not the benchmark of quality in the judicial branch: The nature of our business is such that half the people are unhappy because they lost and some of the ones who won are unhappy because they don’t think they won enough.
In every case, from a marital dissolution that only affects the couple and their children to an issue of constitutional validity, the role of the judicial branch is to resolve disputes neutrally and fairly based on the facts that are presented in court. If they are doing their job correctly, judges decide based on the law and the facts, not based on the possible political ramifications of different results.
Sometimes the public, the parties and even the judges deciding a case are unhappy with its outcome, because the law may not produce a result that accords with our personal preferences. But if you ask those same people, when they have a case in court, whether they want a judge to pre-decide it based on the judge’s views of what will look good in the newspaper the next day, or, instead, whether they want a judge who will come to court with an open mind, listen to their side of the case, and reach a fair decision – they will pick the open mind and the fair decision – every time.
No one wants to worry that the case will be decided against them because the other side, or the other side’s lawyer, gave a large contribution to the judge’s election campaign, or to those politicians who appointed or nominated the judge for office. Missourians learned long ago, before they adopted the nonpartisan plan, that is exactly what can and does happen when politics becomes a key factor in determining who will be a judge.
Missouri was the first state to adopt a non-partisan judicial selection process somce adopted by a majority of the states, although some states have added their own tweaks.
Although we adopted our plan in 1940 in an effort to take as much politics as possible out of the judicial selection process, the issue goes back to our first Constitution that was written in 1820 and had to be accepted by Congress before Missouri was allowed to become the 24th state.
That Constitution had the governor nominating judges at all levels and if the senate gave its consent to his nomination, the judges cold serve until they were 65 as long as they engaged in “good behavior.” But if the legislature found a judge having badly, it could by a two-thirds vote in each legislative chamber, ask the governor to remove a judge.
In the next couple of decades, though, Missourians began to doubt the wisdom of that latter point because it made the courts subservient to legislative politics and legislators were too influenced by special interests. Missouri became one of the states that decided the answer was judicial elections, legalized here in 1850.
By the start of the Twentieth Century and the machine politics of the time—the Pendergast family’s control of Democrat politics in its home town of Kansas City and in much of Missouri and the Butler machine in St. Louis, for example—the public became concerned that the judiciary’s independence was in doubt.
Beginning in 1903, when four state senators were indicted for taking bribes to vote on legislation specifying ingredients for Missouri-made baking powder and the supreme court overturned the first conviction and sentence and the other three cases never went to trial, there was suspicion that the supreme court had its own “boodle” scandal.
The Pendergast grip on Democratic politics statewide in the 1930s led to a push for adoption of a nonpartisan court plan known as “merit selection.” It was part of a national movement aimed at assuring our courts would be a true third branch of government.
When the legislature refused to hold an election on the proposal, an initiative petition forced a vote—and Missouri voters bought the idea in November, 1940. When the legislature put a repeal of the plan on the 1942 ballot, voters strongly rejected it.
When our present state constitution was adopted in 1945, the plan was not touched.
The plan was limited to judges of the Missouri Supreme Court and courts of appeals. It also applied to some lower courts, including the probate courts, in the city of St. Louis and Jackson County. Other counties were given the option of adopting the plan. But only six of our circuit courts have been put under the non-partisan plan, recognized nationally as The Missouri Plan.
Here is how it works:
A nonpartisan judicial commission, the Appellate Judicial Commission, solicits applications, interviews candidates and picks three finalists. The commission has three citizens appointed by the governor, three lawyers appointed by the Missouri Bar, with the chair being the chief justice of the Supreme Court. The commission picks three finalists whose names are made public, and the governor makes the final choice.
When a vacancy occurs, the commission seeks applicants and encourages the public to nominate well-qualified candidates for consideration. The commission reviews the applications of lawyers who wish to join the court and selects which applicants it will interview, then conducts those interviews in public. The commission then deliberates in a closed meeting to select a panel of three nominees for the governor’s consideration.
The governor has sixty days to announce his choice. If the governor fails to make a pick, the commission re-convenes and fills the vacancy. That has never been necessary.
The new judges then serve at least a year but then have to stand for retention in a statewide vote. The vote does not involve opposing candidates. It only asks citizens if the judge should be kept in office. There is no campaigning although the Missouri Bar’s Judicial Performance Evaluation Committee (made up of lawyers and non-lawyers) gives voters information about each of the judges up for retention so informed votes can be cast.
Although all counties can adopt this procedure, only a few use it. Only six jurisdictions do evaluations and hold non-partisan circuit judge elections—St. Louis city and county, Clay, Jackson, and Platte Counties in the Kansas City metro area, and Greene County (the Springfield area).
The plan is recognized as one that keeps politics out of judicial selection as much as possible. Unlike the federal system in which a President can reward friendly lawyers with juicy judicial appointments, this plan creates a process that sends up three people whose qualifications are based n their understanding of the law and the proper administration of it. There is no Senate approval of nominees, which would run the risk of politics being a major part of the process.
It does not keep those who want to degrade the legal system for their own protection or benefit from complaining about “unelected activist judges.” But, having learned how it operates, this system might make it clear that some of the current attacks on the judiciary have no grounds, at least not here and not in our appellate court system.
The Missouri Non-Partisan Court Plan is the greatest protection we have against those who want to replace justice with ideology.