Judicial Retention

While almost everyone in the State of Missouri knows how they will vote in the "big" elections, many of us get thrown off our game when we get "down ballot". It's easy to know who you're voting for at the President and Governor level, but when you get down to some of the propositions and the judicial retention ballots, it's easy to find yourself resorting to guesswork.

This year, Jackson Countians will face a list of judges and a decision on whether or not to retain each of them. The judges are as follows:

SUPREME COURT OF MISSOURI
Patricia Breckenridge

16TH JUDICIAL CIRCUIT (JACKSON COUNTY)
CIRCUIT JUDGES
Michael W. Manners
John R. O'Malley
Ann Mesle
Peggy Stevens McGraw
Kelly Moorhouse (Judge Moorhouse died earlier this week, but her name will be on the ballot. I'll be casting my vote for retention as a tiny tribute to a fine woman and a great public servant.)
John M. Torrence
Robert M. Schieber
Brian C. Wimes

ASSOCIATE CIRCUIT JUDGES
Robert Beaird
Vernon E. Scoville, III
Robert L. Trout

Unless you're a lawyer or a courthouse regular, you've probably never heard of most of these individuals. How should you vote?

Despite a wide variety in their backgrounds and experience levels, I encourage you strongly to vote in favor of each of these judges. The links on their names will direct you to the Missouri Bar's Judicial Evaluation of each of them, and they are an impressive lot. If you live in Missouri outside of Jackson County, you will have a different list of judges to vote for, and you can get those judicial evaluations, as well, at the Missouri Bar judicial evaluation website.

Even if you're going to simply take my advice and vote to retain each of the judges, I'd encourage you to take a few minutes and look at the evaluations. They will demonstrate to you just how well the Missouri Plan works.

The process is above traditional politics. By all rights under traditional politics, for example, I ought to be vigorously opposing Judge Breckenridge. She's a Republican - and she got her initial appointment from John Ashcroft, and her Supreme Court appointment from Matt Blunt. Those are the sort of credentials that ought to have a "yellow dog democrat" like me demanding to have her driven from office.

But she's a fine judge brought to us by a good process. People who know the law and the judges nominated her to be considered as one of three candidates for her position, based on her judicial temperament, legal ability and other factors aimed at picking great judges instead of great partisans. As a Missouri citizen, I sincerely do not care how Patricia Breckenridge the citizen votes when she casts her presidential ballot, but I care deeply that when she votes on cases in her job as Missouri Supreme Court judge, she does so on the facts and the law. As demonstrated by her outstanding scores in the evaluation process, a vast majority of Missouri lawyers, of all political persuasions, agree with me.

The same thing goes for all the other judges on this year's Jackson County ballot.

If you don't trust lawyers to evaluate the judges, though, I strongly encourage you to look at the juror evaluations. These are submitted by jurors (your peers) who have personally witnessed the judge in action. The scores are virtually unanimous that the judges listed have treated people equally and with dignity and were well prepared, etc.

I fully expect that each of the judges listed above will be retained by wide margins. Ironically, the opponents of the Missouri Plan will argue that those margins demonstrate that the voters aren't smart enough to be trusted to retain only the good ones. They are all good ones. The system is working. Go look at the thorough information available to you, and you can vote with complete confidence.

The Missouri Plan has given you an excellent set of judges. Retain them, and support politicians from either party who promise to retain the Missouri Plan.

Why We Need Strong Federal Judges; Republican Earl Warren

Wonder why folks on the far right hate reasonable federal judges of all political stripes? Because they strike down unconstitutional laws. The New York Times carried this obituary:

Mildred Loving, a black woman whose anger over being banished from Virginia for marrying a white man led to a landmark Supreme Court ruling overturning state miscegenation laws, died on May 2 at her home in Central Point, Va. She was 68.

Not many folks remember Mrs. Loving, but the Times provides a nice refresher course on this ugly part of our history.

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here."

Eventually, the case wound its way to the U.S. Supreme Court, where Chief Justice Earl Warren struck down Virginia's law that prevented people of different races from being married. Virginia trial Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that “as long as you live you will be known as a felon.”

You will recall the race riots in Little Rock, the protests around Brown v. Board out of Topeka. The Loving case faced a similar outcry from the racists. Since those decisions, the far right wing has figured out that they only way to have unconstitutional laws upheld is to pack the federal courts at all levels.

When McCain talks about appointing judges like Scalia, what he is saying is that he is not going to appoint folks like Chief Justice Earl Warren. Warren is viewed as a turn-coat. Despite being elected as the Republican Governor of California and the Republican VP candidate in 1948, Warren did such crazy things as saying separate was not equal (Brown v. Board), that people should be told their rights (Miranda v. AZ) and that all humans are created equal and can marry people of different races (Loving).

I'm holding my breath for McBush to say he's going to appoint the next Earl Warren.

McCain Appeases Religious Right With Promises to Appoint Activist Judges

Have you ever heard a Democratic candidate talking about appointing activist judges to the bench? Of course not, we have too much respect for a neutral, third branch of the government. The judicial cannons require judges not to pre-judge cases, but McCain is promising to appoint activists to the bench who will do his bidding.

McCain, in a speech in Winston-Salem, promised to support judges like Alito and Roberts. This is nice code language for ignoring previous case law and deciding cases the way the religious right wants. McCain has previously said he would appoint judges like Scalia and would Sen. Sam Brownback (R - KS) help pick the judges. Under Altio & Roberts, the decisions have all been focused on a erosion of civil liberties. McCain bashed various opinions, bashed the entire 9th Circuit and said there is systematic abuse by our federal judges. Lest he forget, Alberto Gonzales made it his #1 priority to appoint right wing judges to the bench. For the last 8 years, Bush has been packing all levels of the federal bench with ultra-conservative judges. Are they the systematic abusers McCain is talking about?

Here's the real deal - the religious right doesn't trust McCain. The religious right has been focused on taking over the Supreme Court. Here's how the Houston Chronicle puts it:

By speaking about judges, McCain offered an olive branch to the Christian right, which as been deeply suspicious of McCain.

He has clashed with its leaders and worked against them on issues like campaign finance reform. He also joined the "Gang of 14," a group of senators — seven Republicans and seven Democrats — who avoided a showdown over judges by agreeing to preserve the minority party's right to block President Bush's nominees with the filibuster.

At the time, Republicans held majority control of the Senate; today, they are in the minority. McCain told reporters Monday he would be hard-pressed to find a Republican opposed to the deal "now that the numbers have changed."

Despite his rocky relations with the right, McCain's record on their top priorities — cultural issues like abortion — is very conservative.

McCain doesn't want judges who will apply the law, he wants activist judges who will side with the religious right, regardless of the Constitution, precedent or the law.

No More Right Wing Judges

I'm sick of Republicans talking about the need to appoint strict constructionists to the bench. The far right makes no bones about saying they want more of judges like Altio and Roberts, all up and down the federal bench. Finally, someone is fighting these knuckleheads.

The Leadership Conference on Civil Rights is a group of 200 organizations - folks like the NAACP, NEA, League of Women Voters, AFL-CIO, National Council of La Raza, AARP, National Council of Churches - that has been around since 1950 to fight for civil rights. "LCCR is the unifying force for national organizations representing people of color, women, children, older Americans, gays, workers and religious groups. We are leading one of the most important fights in our history the fight to stop the right-wing takeover of the courts."

Here's an example of the positions that LCCR takes:

The Senate recently held a hearing on the controversial nomination of Attorney Richard Honaker to a lifetime position on the United States District Court for the District of Wyoming. Honaker is one of many controversial nominees who threaten to weaken established constitutional rights and civil rights protections for ordinary Americans. Given the damage already done to the courts because of the President's partisan engineering, the Senate must refuse to confirm any more controversial nominees. Call your senators today at (202) 224-3121 and tell them to stop confirming controversial nominees, including Richard Honaker!

The #1 priority of Alberto Gonzales when he ran the Department of Justice was to pack every level of the federal bench with Alitos and Roberts. They pack them when they are young, so they can be there forever. They get those on the very far right to serve as lifetime federal judges because the religious right knows that every civil liberty this country has ever got (after the Bill of Rights) has come through the federal courts - Right to vote without Jim Crow laws, interracial marriage, choice, etc. The LCCR gets it "because the Supreme Court takes such a small percentage of cases, lower federal judges often represent the only shot at justice individuals get."

The right wing gets it, does the left?

Blunt Gives Away Appointments to Big Donors; why not to destroy the Missouri Plan

Gov. Matt Blunt has shown an uncanny ability to give high level appointments to big donors. The best example is Rudy Farber - $50,0000 in donations - Missouri Highway & Transportation Commission. Now let's see, do we really want lawyers seeing who can donate the most to Matt Blunt to get an appointment to the Missouri Supreme Court? Its bad enough that Farber - a rich Republican hack - gets to decide who gets their road paved first. It is down right disgusting to think a rich political hack from either side (let's not forget, Missouri swings back and forth between R and D) would be deciding your case and granting pay backs.

The Missouri Plan is not perfect, but it does not reward campaign contributions. Gov. John Ashcroft was kept in office for 8 years and because the majority of Missourians liked him, he ended up getting to appoint the entire Missouri Supreme Court. Ashcroft never complained about the Missouri Plan of selecting neutral judges. Ashcroft never hired an attack dog like Jeff Roe to orchestrate an attack on the non-partisan court plan. Hard for me to say this, but Ashcroft played by the rules, i.e. the Missouri Constitution. His last appointment was Chip Robertson (Ashcroft's own chief of staff). Chip is no Democrat, but he supports the Missouri Plan.

Justice should be blind (and yes, Attorney General Ashcroft, she's also partially naked). Justice and judges should not be sold off to the highest donor as Gov. Blunt has done with the rest of our state government.

DOJ Totally Corrupt - Scholzman Quits

OK, I'm an NPR junkie. I love Nina Totenberg. Her insight into the Supreme Court and legal issues is amazing. So, when I hear her voice on KCUR, I perk up.

I was shocked this morning to hear Nina Totenberg talking about the Western District of Missouri, our former US Attorney Brad Scholzman, our fired US Attorney Todd Graves and the corruption in the Department of Justice. Brad Scholzman is resigning, the latest in a long list of political hacks going day as the corruption scandal spreads through the Department of Justice.

Its amazing how the Republican scandals make even some Republicans look "normal." Take Ashcroft - on death's door in a hospital bed - standing up to Gonzales to stop illegal wiretaps. Ashcroft - of all the Republican radicals - appears "normal" compared to Rove/Bush/Gonzales Now, take Todd Graves - brother of Congressman Sam Graves - getting fired from being a US Attorney. Why fire Todd Graves - because he wouldn't go after Democrats and ACORN. Well, Scholzman would, so they brought him into KC, he filed charges and "It surprised me," Graves said in June. "It surprised me that they'd been filed that close to an election." Some may say that the political objectives of the Scholzman caused the prosecution of Shields. So, Todd Graves looks almost "normal."

The arrogance of the current occupant of the White House is amazing. Why fire the brother of a congressman (unless Sam Graves is hated by Kit Bond) and then lie about it? Why send in Kit Bond's relative to take over the US Attorney's Office (unless he needs his resume built up a little more so he can run for Kit's job)? Why turn one of the most respected organizations on the face of the Earth - the US Dept. of Justice - into political hacks? Why would President Bush - but for an inner party feud - take Congressman Graves and Senator Bond to breakfast at the Corner Cafe in Riverside (always ask them to bring out the biscuits or rolls first, they are great as an appetizer)? Does Bush think some scrambled eggs can fix the anger over Kit Bond quasi-endorsing Mayor Barnes in her race against Graves?

It's Not About the Judges

One of the bits of "wisdom" that both parties have picked up on over the past decade or so is the importance of "wedge issues" to excite "their" voters and get them to show up at the polls on election day. The ideal wedge issue is one that your people are passionate about, but the other side is less interested.

The battle over the Missouri Plan is a wedge issue.

Stem cells are a decent example. If you believe that stem cell experimentation is murder, you are motivated to show up at the polls and save lives. If you believe stem cell research is simply a promising area of medical advancement, the accepted wisdom is that you're less motivated to get up and vote. Preventing murder with God on your side ought to generate more votes than supporting a bunch of nerds in lab coats doing stuff you don't really understand. So, if you want religious conservatives to show up at the polls, put stem cells on the ballot as a wedge issue. Other examples include the minimum wage, gun control and gay marriage.

This year, the Republicans are relying on activist judges instead of stem cell-murdering scientists to get their voters to the polls.

They've started laying the groundwork for their attack on the Missouri Plan already. They've tried to paint Chief Justice Laura Stith into a corner by making silly requests for meaningless documents. They've tried to falsely accuse the Nominating Commission of being "secretive". They've run billboards raising the specter of "activist judges", without being able to name a single Missouri state judge who qualifies for that flexible label.

The funny thing is, life without the Missouri Plan would be worse for all of us, Republicans and Democrats. That's why we're seeing Republican ex-judges and lawyers doing their best to stop this wedge issue. That's why Republican ex-Chief Justices have come out in favor of the Missouri Plan. That's why Lathrop & Gage evicted Jeff Roe from their offices after they started to get calls questioning their smelly alliance with the loudest opponent of the Missouri Plan.

Now, imagine for a moment that you are a conservative republican (I hope that's a stretch for you). Think for a second about having elected judges interpreting our laws and running our courtrooms. Think about the scoundrels and rascals those democrats have gotten elected statewide in the past, and think about the trends in republican popularity. Think about Chief Justice Bob Holden running our Supreme Court. Think about who would get elected to be our trial judges in Kansas City and St. Louis - where most big trials happen. Do you want Judge Coe handling your divorce?

Nobody intelligent really wants the Missouri Plan to go away. Not even Jeff Roe. But they are willing to risk damaging Missouri's judicial system for a one-time shot at motivating some ill-informed voters to the polls so they can vote against non-existent activist judges.

Let's hope that those who care about our judicial system more than about the next election win this round. Our judicial system is too important to be reduced to a wedge issue.

Sen. Chris Koster Switches to a Democrat

Sen. Chris Koster apparently has had enough of the Republican games and is switching to become a Democrat. Koster is running for attorney general. His last financial reports reveals that he took $125,000 from stem cell research supporter Jim Stowers and took in over $100,000 from unions. Looks like his contributors were Democrats anyway.

Maybe Koster has had enough of Republicans and Matt Blunt kicking kids off health insurance. Maybe he felt like crap for calling the previous question (the PQ has been used less than 10 times in the history of the Missouri Senate to stop debate) on Sen. Jolie Justus. Maybe it is the Republican party's constant attacks on the judicial system, since Chris Koster is a practicing lawyer. Maybe the 3-way Republican primary with Hanaway and Gibbons was too much (remember, in primaries, the most liberal wins the D's primary and the most conservative wins the R's primary). Whatever it was, it sure will make a potential special session this fall a political circus.

Republicans are calling on Koster to resign his state senate seat. Some people are calling for Koster to fire Axiom and Jeff Roe (the political attack dog for Congressman Graves). Democrats in Boone County (the home of my favorite AG candidate, Jeff Harris) are crying foul. The Boone County Democratic Party has detailed Koster's votes on corporate pig farms, voter photo ID's, the sale of MOHELA and children's health insurance. For some great quotes from political folks from around the state, check out the Post's page.

Group to Protect Judges from Jeff Roe

Jeff Roe is committed to attacking judges. Thank goodness someone is standing up to him.

A new group was formed, Missourians for Fair and Impartial Courts. They are stepping up to ensure that the 3rd Branch of Government is not composed of partisan hacks, but intelligent folks who want to follow the law. This isn't about frivolous lawsuits (which everyone hates). It’s about, in part, protecting businesses (the lion's share of civil suits are filed by corporations).

Business know that fair and impartial courts are an important part of Missouri's economic engine. Trade partners from other states or countries are more likely to partner with Missouri companies if they know the courts are beyond the influence of politics and will apply the law fairly and consistently. Businesses expect courts to not be swayed by public opinion or interest groups.

So, at least there is an alternative to the Jeff Roe "put your judge up for sale" approach. The Missouri Plan worked for Ashcroft, it worked for Bond. Somehow, when gay marriage and abortion got old, beating up on judges became cool with some of the Republicans. Enough already.

Jeff Roe Breaks Missouri Supreme Court Rules

We teach our kids to follow the rules. Jeff Roe must not have picked up on this idea.

Jeff Roe's blog, the Source, "leaked" the names of folks who applied for the Supreme Court. He knows it violated Missouri Supreme Court rules because Roe refuses to identify "VERY RELIABLE SOURCE." To make it even more embarrassing, he has reduce the highest court in Missouri to a sweet 16 bracket and encouraged betting on the outcome - complete with a $50 prize. Is this what we want our state to look like? Is this what the lawyer/Republican politicians who employ Jeff Roe envision for our state?

Missouri Supreme Court Rule 10.28 bars revealing the names of lawyers who have applied for the Supreme Court. Why - "No publicity shall be given by the commission of the names of persons under consideration for nomination for the reason that such publicity would tend to keep well qualified lawyers from permitting themselves to be considered and might encourage unqualified persons to enter their names to obtain public notice." We don't want publicity hounds to throw their name in the hat. We do want highly qualified candidates to apply without fear of their legal practice being shut down because they might make the Supreme Court.

Applying to the Supreme Court is not a zoo, it is a big deal. President Bush doesn't reveal everyone he considered for the Supreme Court, because this is a highly dignified office. Turning it into a betting pool is not what we teach our children in civics classes.

Jeff Roe works at or rents from the law firm of Lathrop & Gage. They share the address of 2345 Grand. Jeff Roe has an internal phone number with Lathrop & Gage. Roe’s role there is unclear, but he has use of the L & G postage meter. On Congressman Sam Graves’ financial disclosure, he reimburses L & G for phone charges. Sam Graves for Congress is headquartered at L & G and has the same address. The treasurer for Graves is a L & G lawyer.

Lathrop & Gage is a proud firm with an impressive list of clients. One of the members of the Missouri Supreme Court was Lathrop partner appointed by then Governor Ashcroft. One of the Jackson County Circuit judges was a Lathrop attorney appointed by a Democratic governor.

Jeff Roe doesn't want a neutral judiciary, he wants one where he can get paid to run a million dollar campaign like they do in Texas and Illinois. This is embarrassing.

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?

Jeff Roe Gets Sued for Libel, and Hires Graves

How far does Jeff Roe need to go to make his clients realize he is much more trouble than he is worth?

Check out the tide of nastiness reported on by The Turner Report. Over in St. Charles County, Jeff Roe got sued for libel by fellow Republican Joe Brazil. The case involves allegations of false and misleading stories surrounding the death of one of Brazil's high school classmates. It's going to be a nasty mess, as one would expect of anything involving Roe.

As if the nature of the case weren't nasty enough, Roe has hired the law firm of Graves, Bartle and Marcus to defend him and pursue a countersuit against one of the co-defendants. (Have you ever known a Republican who doesn't point the finger elsewhere when the stuff hits the fan?) In case you're wondering, yes, the Graves in the law firm's name is the same Graves who has been tied up in the Republican US Attorney scandals. In case you're wondering, yes, the Bartle in the law firm's name is the same Matt Bartle who has been at the center of the ineffective Republican Missouri Senate.

This is going to be a wild case. I have no idea who will prevail, but I know that a Republican will lose, and that's enough to make it enjoyable.

Oh, by the way, the next time you hear a Republican complain about tort cases clogging up our judicial system, tell them to talk to Jeff Roe about his lawsuit in St. Charles.