Monday, July 23, 2007

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? Professor Eckhardt, please name a single Chief Justice of the Missouri Supreme Court since the Missouri Plan has been in effect who was not a member of the Missouri Bar.

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 (sic) 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 that poll, 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 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?

77 comments:

Phil Cardarella said...

Even Prof. Dumbledore makes mistakes.

It is obvious that the corporate owners of the Republican Party are quite put out at not being able to simply purchase judges as easily as newspapers or TV networks. Or at least be able to intimidate them with threats of well-funded opponents (which, in turn, would require that they turn to you-know-who for funding).

Hopefully we will continue to frustrate them. But we need to take a broader view of the assault on our liberties than we have. For years, those of us who practiced criminal defense law have warned that the same efforts to undermine the rights of citizens charged with crimes would seep steadily into the civil system -- undermining both jury rights and judicial independence.

"By the way, don't you think -- during this time of national crisis in our War on Terror -- it's time we got rid of all those time-consuming civil jury trials so our judges could concentrate on all those sleeper cells? And get rid of Products Liability suits -- so our manufacturers can concentrate on better weapon?"

Unconstitutional? Ask Habeaus Corpus if that matters.

Dale Youngs said...

One of the most telling signs of how intellectually dishonest these and other attacks on our judiciary are is the absence of cries decrying "judicial activism," "legislating from the bench," or "unelected judges thwarting the will of the people" following last week's decision by the Supreme Court abolishing the fundraising free-for-all passed by the Missouri legislature last session. In fact, Governor Blunt told KY3 in Springfield that he actually thought the decision was "reasonable." Huh?

Oh right -- The opinion was authored by Judge Limbaugh. I wonder what we would have heard if Judge Teitelman had written the decision?

Stephen Bough said...

I am shocked and disappointed that a UMKC Law professor would participate in this kind of partisan attack on the Missouri judicial system.

Not that I am switching parties, but U.S. Rep. Kenny Hulshof (R) is the only Republican congressman from Missouri with any sense. Congressman Hulshof participated in a forum with Missouri Supreme Court Judge Michael Wolf. Hulshof talked about attacks on the Missouri plan "as wrongheaded" and "is a disservice in general."

The Missouri Plan is not broken; it is partisan politics to get the radical wing of the Republican Party enlivened. It’s like abortion and gay marriage. If John Ashcroft can use the Missouri Plan to pick 7 Republicans to sit on the Missouri Supreme Court (and they all happened to be intelligent and qualified), how come Blunt (and Professor Eckhardt) can't seem to get it to work.

Phil Cardarella said...

Actually, it is important to focus on the Plan itself rather than the merits of the individual judges. If an individual judge is doing a poor job, voters can choose not to retain him -- and have done so.
(Unfortunately, special interest money applied unexpectedly and in near-secret still can fool voters into not retaining a good judge. We still need to be wary.)

To those who oppose the Plan itself, the competence and merits of the judges is a DISADVANTAGE. They want to be able to threaten and bully the courts like the NRA threatens and bullies legislators -- but to do that they must be able to have control of the replacement process, since it does them no good to remove a good, independent judge only to have him/her replaced by one equally strong and independent.

This is about intimidation -- and when that doesn't work -- being able to put their own boys in. They want their judges either frightened or bought. To the extent the Plan limits the former and prevents the later, they find it beyond annoying.

Average Voter said...

The retention elections are farcical. One can argue about a small number of basically "don't rock the boat" lawyers and some political hacks picking potential judges, but the retention elections are a joke. It is the closest thing to the old Soviet system that we have: Brezhnev -- yes or no.

At my voting location when it comes to retention elections I am faced with a list of people I have never heard of and asked to approve of them or reject them. It is like reaching weasels and picking out the left handed one. It is the definition of voter fall-off.

To just say, leave it to the lawyers to pick judges, as the Missouri Plan does, is just as bad as saying leave it to the insurance companies to pick Directors of Insurance, or the Farm Bureau to pick the Director of Agriculture.

The common person gets USED to impart the cloak of democracy on a oligarchical system.

I am giving you a tip, if you try to beat back this attempt by the Republicans set up a purchasable system of judicial elections on philosophical grounds, prepare to have a bummer of a watch party. The other side's commercials will focus on retention elections (which voters have experience with) while you spend your money talking about the virtues of how you pick judges for the Governor, which voters do not have experience with so it will not drive vote choice.

Normal people hold contempt for a fraud (Brezhnev yes or no) when they see one. People outside of law school and law firms laugh at the retention election system every time they are faced with it at the ballot box.

Dan Ryan said...

Average Voter:

Thank you for the input, but I believe you are mistaken about what the average voter wants. I don't think we want more robo-calls, more last minute, anonymous fliers, and more of a role for people like Jeff Roe in choosing our judges. The system works, and most Missourians are satisfied with our judiciary, as evidenced by the high retention rates of judges.

Your inflammatory metaphors illustrate your lack of understanding. First off, if you show up on election day and don't know about the judges, you're simply not paying attention. There are ratings published beforehand, and the newspaper provides background information. If voters care, they can learn more. If they are satisfied with the state of the judiciary, they are content to not pay a whole lot of attention.

Your metaphor of reaching into a bag of weasels shows your bias. It's not a bag of weasels. It's a bag of well-chosen, hardworking judges. If there were a weasel, you would know about it.

Similarly, your comparison of the judicial branch of government to the Department of Insurance or the Agriculture reflects a frightening lack of understanding of civics. Judges are not comparable to Directors of those departments - I can't even address your confusion without knowing how you think they are similar.

As for your advice on how to preserve a good system of choosing judges against the intellectually dishonest attacks from people like Jeff Roe, Tom Walsh and Bill Eckhardt, I have confidence in the voters. They know our system works, and the sleazy tactics used to attack the system will remind them of the sleazy tactics they would be introducing into our judicial selection system. On election day, 99.999% of the electorate is sick, tired and disgusted with politicians who are willing to do absolutely anything for a vote. When asked whether they want to add the judges to the list of slimy politicians, they will vote against it, and in favor of a system that works.

Anonymous said...

To "Average Voter" -- You seem to want to engage in the same logical lurch from Point A to Point B that others who want to get rid of the Missouri Plan do -- Judges always get retained by huge margins at election time, so this shows that the Missouri Plan is a joke. This is like saying that the store surveillance tape at Quik Trip didn't record anyone robbing the store last night, so therefore the machine must be broken -- it can't possibly mean there wasn't a robbery.

For someone who purports to want to put more power in the hands of voters, you don't give them much credit. Maybe the fact that voters overwhelmingly retain judges at election time means people are generally satisfied with our justice system and that the system works, not that it's broken.

You also don't sound like you take much of an opportunity to educate yourself before you go to the polls. There are innumerable resources at election time that you can avail yourself of that will provide you with all kinds of information about the judges who are up for retention. I hope you'll take advantage of them next time around.

Anonymous said...

OK - I assume law professors are lawyers. I also assume law professors teach law students how to do legal research. Did the Bill Eckhardt do any legal research for writing a letter? Can't law professors read the law that says lawyers elect three folks on this commission? What am I missing? Maybe they should send him back to law school.

Anonymous said...

Prof. Eckhardt has the 1st Amendment right to say this stuff, but he is really embarassing the UMKC Law School by getting the facts wrong. Since the 3 lawyers are elected and every lawyer is a member of the Missouri Bar, both Eckhardt and UMKC Law School look silly.

Anonymous said...

You know this Blog has been featured on Jeff Roe's web site so there may be a few "Average Voters" on here.

Anonymous said...

Despite what the defenders of the Missouri Plan will say to the uninitiated the truth is that the governor tells the commission the name of a lawyer that they want on the pannel. Who told me? Louis Lombardo and Mike Colburn (they were both my friends.) A Democrat and a Republican. Abuse of the system is bipartisan.

Jeff Rowe is an ass,( I know him too.) But all he is doing is saying a broken system is broken.

When the Governor does not care you have three elitist lawyers choosing candidates to send to the Governor. How many of you believe they will not choose an elitist? I know that Dan Ryan has a conveniently elitist bend of mind that makes him love elitist systems (yes I know him too) and Philly , aw come on guys he is a bloody elitist also (yes I know him too).

The question here is not buying appointments through unseemly campaign contributions, but whether buying Judgeships by serving the power elite is better!

Theoritically all practicing lawyers are qualified to be Judges. Perhaps a lottery system would be better. After 5 or 10 years in practice your name goes into a pot and the man turns the crank, if your name is chosen your life is turned upside down. You become the next judge, and have to defend your seat in 4 years. We should look on it as a civic duty like jury service.

ChewOnIt

Dan Ryan said...

Anonymous - "I know that Dan Ryan has a conveniently elitist bend of mind that makes him love elitist systems (yes I know him too). . .".

Dammit, mom, I asked you not to post here!

whistleblower said...

How many of the voters, that overwhelmingly voted to retain these judges, actually know anything about the judge they voted to retain? I'll bet the real number would be less than 5%. Therefore, over 95% of the voters did not cast an intelligent vote.

You consider that to be a system that works?

The Missouri Plan was adopted in 1940. In 1987, the Missouri Supreme Court created a Rule that hides all complaints filed against judges from the public, as long as their Commission on Retirement, Removal, and Discipline of Judges manages to silence the complaint.

This Commission is designed to protect judges. The C.R.R.D. (known as CRUD, by the Missouri Bar) is headed by a Gary M. Gaertner. Gaertner is one of the bad judges in Missouri. He will cover up the truth. I say this because I have documented evidence.

Read the article about the C.R.R.D. that was written by Lynn Ann Vogel, former President of the Bar Association of Metropolitan Saint Louis, just before her term ended. The Article is on page 2.

http://www.bamsl.org/members/barjournal/SPRING%2007.pdf

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whistleblower said...

How many of the voters, that overwhelmingly voted to retain these judges, actually know anything about the judge they voted to retain? I'll bet the real number would be less than 5%. Therefore, over 95% of the voters did not cast an intelligent vote.

You consider that to be a system that works?

The Missouri Plan was adopted in 1940. In 1987, the Missouri Supreme Court created a Rule that hides all complaints filed against judges from the public, as long as their Commission on Retirement, Removal, and Discipline of Judges manages to silence the complaint.

This Commission is designed to protect judges. The C.R.R.D. (known as CRUD, by the Missouri Bar) is headed by a Gary M. Gaertner. Gaertner is one of the bad judges in Missouri. He will cover up the truth. I say this because I have documented evidence.

Read the article about the C.R.R.D. that was written by Lynn Ann Vogel, former President of the Bar Association of Metropolitan Saint Louis, just before her term ended. The Article is on page 2.

http://www.bamsl.org/members/barjournal/SPRING%2007.pdf

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