Friday, November 9, 2007

Some want political hacks for judges - latest proposal to gut non-partisan plan

The latest proposal to gut the Missouri Non-Partisan Court Plan is circulating thanks to the Federalist Society and Rep. Lembke. Here's the problem - we don't want partisans on the bench. Just because someone is close to an important politician doesn't make them qualified to be a judge. Political types shouldn't be excluded from the process, but they should have substance as a lawyer.

Judges should be neutral, they should be fair. Judges should be able to apply the law and follow precedent. Judges shouldn't owe people favors, should raise money for political campaigns. Yes, it is an ivory tower view of the world. If you are Matt Blunt, do you really want Bob Holden's best friend deciding your case? If you are Jeff Roe, do you really want a highly partisan Democrat deciding the libel suit brought against you by a Republican? No - we want a neutral place that we can all trust to decide cases of importance.

Let's pretend that the state legislature decides it is ok for the Cardinals to pay for the training of umpires, hire the umpires, and send the umpires over for the Royals game. Would they call every play wrong - no. Would we all question the impartiality and fairness over a system - yes. Would there be a Don Denkinger moment in every game - you betcha. That is what we are talking about here - every citizen and corporation should feel like the scales of justice are balanced when they walk in the door.

The St. Louis Post blog on the subject is below

Critics of Missouri Plan lay out new judicial-selection proposal

By Jo Mannies

11/08/2007 1:48 pm

Bill Placke, president of the St. Louis chapter of the Federalist Society, has kindly forwarded to us the latest version of the proposed ballot measure to revamp the state’s current judicial-selection process for the state Supreme Court, appeals court, and circuits in the St. Louis and Kansas City area.

The aim is get the Legislature to approve the measure and place it on the November 2008 ballot.

Placke emphasizes that the Federalist Society is split over the measure. Those supporting include local lawyers Tom Walsh and Sam Hais (the latter a former circuit judge, and state Rep. Jim Lembke, R-South County.

Among other things, the proposal:

–Sets time limits on judicial vacancies

–Calls for the selection panel to pick five nominees, from which the governor would choose.

– Revamps and expands the selection panel (now three lawyers elected by the lawyers of The Missouri Bar, three citizens selected by the governor, and the chief justice of the state Supreme Court, who serves as chair).

The panel would be expanded to 10 members, some of whom would be picked legislative leaders:

– Two members of the Missouri Bar, appointed by the governor (one from each major party).

–Two gubernatorial appointees who “are not members of the Missouri Bar” (one from each major party).

– One person named by the state House speaker

– One person named by the House minority leader

– One person named by the state Senate president pro tem

– One named by the state Senate minority leader

– Two from the Missouri Bar, named by the attorney general (one from each major party).

As a point of clarification, every lawyer in Missouri is a member of the Missouri Bar.


Gene Forte said...

Mr. Bough said

“The latest proposal to gut the Missouri Non-Partisan Court Plan is circulating thanks to the Federalist Society and Rep. Lembke.” -While it is true that Mr. Placke is the President of the Saint Louis Chapter of the Federalist Society, his proposed changes to the Missouri Plan have not been submitted by the Federalist Society.

“Here's the problem - we don't want partisans on the bench. Just because someone is close to an important politician doesn't make them qualified to be a judge.” –Agreed! I don’t see anything in Mr. Placke’s proposal that would infer otherwise.

“Political types shouldn't be excluded from the process, but they should have substance as a lawyer.” – Could you please explain this statement?

“Judges should be neutral, they should be fair. Judges should be able to apply the law and follow precedent.” – Judges not only should be able to apply the law; they are required to apply the law.

“Judges shouldn't owe people favors, should raise money for political campaigns.” –Don’t judges already owe attorneys favors? Don’t judges currently raise money for political campaigns? Other than Saint Louis and Kansas City, aren’t circuit court judges elected by partisan election? Can you provide one instance in which one of those elected judges issued a partisan decision?

The scales of justice are not balanced. The appellate courts hide unpopular decisions that affirm trial court corruption by issuing unpublished memorandum opinions. Let an outside agency determine if a case is precedential instead of the appellate court itself, and let’s see how many cases would be considered precedential.

Stop the self policing of the courts, and we can then see how corrupt the courts really are. How many complaints have been filed against the last three nominees the Appellate Judicial Commission sent to the Governor? Would it surprise you to find that a total of 162 complaints had been filed over the last ten years against the three nominees that were sent to the Governor? Not one of those complaints were formally acted upon. Did the Governor know that when he made his selection?

Anonymous said...

Why is Jackson County allowing Prof. Bill Eckhardt of UMKC to lead the Ethics Task Force if he is a vocal supporter of plans to scrap the Missouri Plan? Doesn't do much to legitimize the Task Force.

Stephen Bough said...

Mr. Forte,

Thanks for your intellectual response. Your level of discourse helps everyone understand the issues (not the personalities) and is why this blog was started.

You asked me to explain "Political types shouldn't be excluded from the process, but they should have substance as a lawyer.” My thought is that someone who doesn't actively practice law - someone who hasn't tried cases - shouldn't a trial judge. If the person's only qualification is that they are highly political, then they shouldn't be on the bench. There are some folks who have substance (i.e. real qualification) who are political folks, too. I'm ok with that. Several R's and D's on the Missouri Supreme Court were involved in politics and have substance as a lawyer (like Judge Ray Price who worked on Kit Bond’s campaign and is highly intelligent and, sadly, a Republican. Price is, however, an American and a Missourian, so he can’t be all bad). “Substance” may be one of my words that I picked up in southwest Missouri and may not be the best word selection.

I cannot provide one instance where an elected judge handed down a partisan decision. I know that it is an awkward situation for lawyers and judges to be forced into the situation of donating or asking to donate to judicial campaigns. Jeff Roe and the Adam Smith Foundation say political decisions are frequent and often critique Cole County judges for the same. Read the link about how nasty the partisan political elections in Illinois operate.

I don't want to see Illinois here. This particular planned change doesn't give us that - this plan just guarantees future judges have to be politically well connected. Other proposed changes would give us Illinois. I believe the current plan guarantees qualified judges, which is why 36 other states have adopted parts of the Missouri Plan. John Ashcroft packed the entire Missouri Supreme Court, using the Missouri Plan. Even Democratic lawyers (like myself) will tell you that while they might not agree with a decision from Ashcroft’s Court, the judges were smart, hard working and qualified. Judge Holstein – smart, fair, Republican. Judge Benton (appointed to the 8th Circuit by W) – smart, fair, highly partisan Republican. Judge Covington – fair, smart, Republican. The list goes on, the Missouri Plan worked for Ashcroft and Missourians.

It would not surprise me to find that the current crop of judges had a total of 162 complaints. When I first got out of law school I worked for a judge, he would get filings and complaints from prisoners written on toilet paper. Our system encourages people to file complaints, but the sheer volume of complaints from folks behind bars does not mean that Republican Judge Patricia Breckenridge is not smart and qualified. Judge Breckenridge is a person of “substance,” she worked hard on the Court of Appeals, she has the qualifications to be on the Supreme Court. Matt Blunt must have agreed, but what he really wanted was a highly partisan Republican who would do his wishes. Where can I find support for the 162 complaints?

Mr. Forte, I greatly appreciate the intellectual honesty, the challenge to support my assertions, the thoughtful exchange, the signing of the name. Please come post any time.

Anonymous said...

To see Mr. Placke's comments on another blog, go to

gene forte said...

Mr. Bough,

Thank you for taking the time to address some of the points that I presented.

I do find it interesting that you claim that partisan influence would destroy the Missouri courts, but cannot identify a single partisan decision handed down by the courts.

Other than the appellate, Saint Louis, and Kansas City courts, the rest of the judgeships in Missouri are filled by partisan election. Yet, you cannot identify one partisan decision.

Are you telling the voters to be scared of the boogie-man? Surely some decision handed down by a judge elected in a partisan election would have to be considered partisan for the fear to be based on something more than a possible future occurrence.

As Cole County is the place where a partisan decision would most likely occur, and those judges are elected by partisan election; how can it be that no partisan decisions have been handed down by those judges?

You stated that 36 other states adopted the Missouri Plan. The majority of those states recognized that the Missouri Plan is flawed, and took appropriate steps to modify it.

We live in a representative republic. The people of this country and this state, either directly or thru their elected representatives, control our government. The Missouri Plan took that control away from the citizens of Missouri and effectively placed the control into the hands of unelected representatives. Only a minority of the members of the Judicial Selection Committee have been placed in that position by someone the people elected. The Governor is forced to appoint one of those nominated by this group of unelected representatives, or they will do it for the Governor.

The Missouri Plan was a “quick fix” for a problem that occurred 67 years ago. I don’t know that Mr. Placke’s proposal is the best way to amend the process, but it does involve the voters of this state, thru their elected representatives, and that’s a good start.

I find it interesting that you attribute all 162 complaints filed against these judges as having been filed by convicted criminals. I’m not referring to complaints sent to a judge. I’m talking about complaints filed with the Commission for Retirement Removal and Discipline of Judges. Complaints that are sent to the Commission on toilet paper are not considered, or counted as filed. All complaints must be filed on the form provided by the Commission to be considered “proper”. Missouri conducts fewer formal investigations of complaints filed against judges than any other state. I’m sure that you can understand why I cannot reveal my source. I wish that I could.

I can appreciate your support for the position of the Missouri Bar, but let’s leave the fear tactics to our Republican leadership. If partisan elections are resulting in partisan decisions, they need to be exposed. If partisan judges are not handing down partisan decisions, it’s time for “Fear Factor” to end its run.

The Missouri Bar is defending the Plan against any change, not just against a change that would be detrimental to the quest for justice in Missouri. The Missouri Bar would be much better to identify the flaws in the Plan, and consider remedy to those flaws. If any member of the Missouri Bar can demonstrate that judges are retained by intelligent voters making an informed decision, I would nominate them as “magician of the year”.

Stephen Bough said...

Mr. Forte,

If neither you nor I can identify partisan decisions, why change a perfectly acceptable system? I'm telling the voters the system works. I am praising a system where Ashcroft can pack the entire Missouri Supreme Court with Republicans and the system works. If I am praising Republicans, something is wrong, I will give you that.

Please consider attending the CCP Forum on the Missouri Plan on November 29th at 6:00 at the UMKC Law School. It would be a pleasure to meet you.

gene forte said...

Mr. Bough,

I didn’t suggest that partisan judges would hand down partisan decisions, you did. I simply asked you for one example of a partisan decision handed down by a judge that was elected in a partisan election. If it were my contention that judges who acquired their position by partisan election would hand down partisan decisions, I would be prepared to support such with example.

It is evident that you cannot support retention elections as being anything more than a sham, than I can.

Why change a perfectly acceptable system? It has been identified as flawed, and not just by me. Approximately 30 states have identified and subsequently repaired the flaws associated with the Missouri Plan.

You avoided the fact that those appointed to the Missouri Judiciary have not been appointed by the people of Missouri, or their elected representatives. The Governor is forced to appoint one of the nominees submitted to him by the Judicial Selection Committee; a Committee whose majority is appointed by the members of the Missouri Bar.

If you truly believe that the Missouri Plan is the best thing since chicken soup, please be willing to address the flaws that have been presented. Avoidance of these issues only provides silent concurrence of the identified deficiencies.

If you want to support the Missouri Plan because change scares you, just say so. Don’t present disinformation about the results of partisan judges that you cannot or will not support by example. That just is not fair to the voters of Missouri.

For any others that are reading this civil commentary, I present one challenge: Name three judges that you voted to retain in the 2006 general election, and tell me why. This challenge is not presented to the members of the Bar. It is directed to the voters of this state that, election after election, cast an uninformed vote to retain a judge whom they know absolutely nothing about.

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