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?