Behind closed doors — how Missouri makes judges

Posted: Aug 19, 2007 12:00 AM
Behind closed doors — how Missouri makes judges

We are told not to ask how sausage is made. We often postpone telling our children where babies come from. But democracy’s a bit different, isn’t it? I mean, aren’t politically interested citizens entitled to know where their judges come from, and why?

So why are adult voters in Missouri kept in the dark?

Forty percent of Missouri voters believe, wrongly, that the justices of the state’s Supreme Court are appointed by the governor and confirmed by the general assembly. Nearly 90 percent are unaware that the Missouri Bar selects three of the seven people who serve on the commission which in actual fact has the most power in selecting judges. They pick the only three nominees from which the governor can choose.

Very few voters think the Missouri State Bar lawyers should have the greatest input on who serves on the Missouri Supreme Court.

Truth is, though, that the Missouri Bar has something of a lock on the whole process. It’s called the Missouri Plan. It’s been in operation since 1940. It’s supposed to be non-partisan. Bottom line is that lawyers are in control.

The people aren’t.

Like all governments, Missouri’s judicial selection commission shows a marked tendency to do as much business as possible behind closed doors. Supreme Chief Court Justice Laura Stith (and member of the Missouri bar), who runs the commission, believes that the state’s Sunshine (open meetings) Law doesn’t apply to her little group.

Is it worth noting that not one member is elected by the people? The commission consists of

    • the chief justice (Stith)
    • three lawyers elected by members of the Missouri Bar
    • three people appointed by the governor

The funny thing about the system, as set up, is this commission’s power. If the governor doesn’t deign to select one of its three proffered candidates, then the members of said commission themselves appoint the judge!

The current brouhaha has something to do with Missouri’s conservative governor, Matt Blunt. He’s named one member to the commission, Don Ross, who is best known as president of Enterprise Rent-A-Car. Blunt objects to “activist judges,” and so does Ross. And the thing they’ve noticed is that the Bar really likes activist judges.

This burst into the news after an unsuccessful applicant to the position went public, a St. Louis lawyer named Mark Mittleman. He said he was asked a few rather pointed questions that he felt odd, coming from a board in the business of winnowing out Supreme Court candidates.

In particular, he was asked about a billboard critical of Missouri’s activist judges, a billboard sponsored by a local group, the Adam Smith Foundation.

There he was, interviewed by this august commission, and he’s being asked about billboards! Mittleman, a Republican, said he thought that odd. “I had a sense there was something in the background there that I didn’t know about.”

Yes, oh yes, there is. I bet he has an idea about what’s going on now. After all, he’s a member of the Federalist Society, a national group of libertarian and conservative lawyers that, along with the new Missouri-based Adam Smith Foundation, is bucking the system. Since Mittleman went public, Missourians have heard more than a bit about the legwork, research, and publicity these groups have engaged in.

And they’ve heard some nasty names thrown around at anyone who dares challenge The Missouri Plan.

Defenders of the status quo call the complaints — from Blunt’s office, from the Adam Smith folks and others — political complaints. And dismiss them.

Funny thing is, the opponents of the status quo call the process political, too!

If liberal after liberal gets appointed to the court, what else can you call the process?

Well, I have an idea: a self-interested process. A class system. A cabal.

Now, Governor Blunt has had some blunt things to say about the commission, in public. And he’s asked the commission-approved finalists some pretty pointed (and, some say, bizarre) questions, too. The last three candidates sent for his selection skewed too far left, for his taste, and for the taste of many who oppose the system. To many Missourians, two Democrats and a RINO is not much of a choice.

But these particular nominees aside, it’s the process itself that most offends. Any selection process in which a guild of unelected self-interested professionals (the Bar) has such a huge say in who becomes a justice is bound to frustrate, sooner or later.

It’s been nearly 70 years now, and Missourians have had time to see how this selection process works. They might prove more than willing to give reform another look, at the very least by letting a little sunshine into the process.

In the meantime, the issue will certainly be kept alive, now that the people at the Adam Smith Foundation have initiated a new set of radio ads calling for an open selection process.

I am sure that the Adam Smith folk are bracing themselves. For the criticism. They have stirred up the proverbial hornet’s nest. There’s arguably no power in politics more formidable than the lawyer’s guild. And the guild has already mustered support from mavens in the old media.

My advice? Missourians, take a grain of salt. Remember: Established power doesn’t like to give up power.

Still, there’s hope for sunshine in Missouri. Which is good, because popular, open government in Missouri makes it all the more likely elsewhere. After all, the Missouri Plan was much imitated, in state after state. It’s time for state after state to adopt more open ways of choosing judges.