Missouri Plan

This judicial selection article needs to be expanded.

---

The Missouri Plan (originally the Missouri Nonpartisan Court Plan) is a method for the selection of state-level judges that is currently used in 15 states.

The Missouri Plan combines appointment and election of judges. Under the plan, when there is a judicial vacancy, a list of candidates to fill the vacancy is selected by a commission. Three names are forwarded to the governor, who has sixty days to select one. If the governor does not select one of the three to fill the position within those sixty days, the committee will then make the selection. Newly appointed judges must stand for retention in the next general election after one year in office. If a majority vote against retention, the judge is removed from office and the process starts anew.

History of the method

The Missouri Plan was adopted by voters through initiative position in 1940. However, the notion of merit selection was first proposed by Albert Kales in 1914. Support increased over the next thirty years, with endorsements by the American Judicature Society and the American Bar Association.

Support of the method

The commission-based selection and retention of judges is seen as a way to keep politics out of the judiciary. Supporters regularly cite the amount of money spent on high-profile judicial election campaigns as a symptom of buying justice. Also, the method is referred to as "merit selection" as a way to ensure that citizens know that judicial candidates are screened before appointment.

Criticism of the Missouri Plan

The Missouri Plan is not without critics. One of the primary criticisms is that insider interests can and do gain control of the process, so the judges that are selected are chosen not for their merit, but because their judicial philosophy aligns with that of the members of the selection commission. This viewpoint is illustrated by Professor Brian T. Fitzpatrick of Vanderbilt University, who writes, “In short, I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.” Fitzpatrick notes that “…if we are willing to accept the notions that lawyers care about the outcomes of judicial decisions and that these outcomes are correlated with judges’ ideological preferences, then we might expect merit commissions to select judges who share the ideological preferences of the bar rather than those of the public.”

Indeed, Fitzpatrick has found evidence that the Missouri Plan has resulted in the nomination of more left-leaning judges, noting that, “Of the fifty-four nominees in Missouri since 1995 who made any campaign contributions, 87% gave more to Democrats than Republicans, and only 13% gave more to Republicans than Democrats. Over the same time period, Democratic candidates in Missouri only received roughly 50% of the general election votes in state and federal House races.”

In a paper published in the Summer 2009 edition of the Missouri Law Review, Professor Stephen Ware of the University of Kansas writes that, "As the bar is an elite segment of society, states that give lawyers more power than their fellow citizens are rightly described as elitist."

Professor Ware finds that the unchecked power given to the Bar undermines the democratic legitimacy of the system, writing that “…even commission systems have democratic legitimacy insofar as members of the nominating commission are appointed by popularly elected officials. Democratic principles are violated, however, when members of the commission are selected by ‘a minority of the persons, i.e. lawyers in their area.’ This, of course, is the core of the Missouri Plan – allowing the bar to select some of the commission and then declining to offset that bar power with confirmation by the senate or other popularly elected body. And it is this core that deprives the Missouri Plan of democratic legitimacy.”

See also

• Judicial selection in Missouri

External links

• The Missouri Bar, From the Report by the Commission on Judicial Independence, Appendix 1