Reform Plan A Test Case For Supporters of “Merit” Selection
September 24, 2008
Proponents of “merit” selection always object to the claim that their system of choosing judges puts too much power in the hands of lawyers at the expense of ordinary citizens. Well, now we have a test case to see whether their objections should be taken seriously or whether they are just political rhetoric.
The Kansas City Star’s blog, Prime Buzz, reports that in Missouri, Republican gubernatorial candidate Kenny Hulshof has proposed a plan to reform the state’s judicial selection commission by reducing the role of special interests in deciding who sits on the bench. The plan involves three major reforms:
- First, the Hulshof plan would replace three commissioners selected by legal special interest groups with three randomly selected retired judges, reducing the role that special interests play in picking judges.
- Second, the Hulshof plan would allow the governor to make five selections to the seven member commission rather than the current three and would remove the sitting chief justice from the commission. This would make the commission more accountable to an elected representative of the people, rather than to special interest groups.
- Third, under the Hulshof plan, the Governor would not be bound by the choices of the commission, but could choose his/her own nominee after rejecting two slates of candidates.
Under Hulshof’s plan, “merit” would still be taken into consideration by the judicial selection commission in nominating, but the commission would be accountable to the elected representative of the people, not to legal special interest groups. Will Justice at Stake and other allegedly non-partisan groups come out in favor of Congressman Hulshof’s plan? Don’t hold your breath.
Law professor David Achtenberg of the University of Missouri-Kansas City gave us a preview of what to expect – the familiar “voters are too stupid” argument:
Even the most radical proposals for changing (the selection process) have not suggested eliminating the involvement of practicing lawyers, the people with the most knowledge of the candidates.
But judges don’t serve the lawyers, they serve the people. The impact of their decisions reaches people far outside the legal community. Doctors, business people, teachers, police officers, parents – the lives of all these ordinary citizens are influenced by rulings from the bench and they deserve as much say as any lawyer in deciding who will be handing down these decisions. No one would suggest that teachers be given more influence in choosing who sits on our school boards, even tough they probably have “the most knowledge of the candidates.” And no public good is served by giving lawyers undue influence over who sits on our courts.
Prime Buzz maintains that Missouri’s current system is “designed to take partisan politics out of the process.” But out of the last 21 nominees to the state Supreme Court chosen by the non-political commission, 19 have been Democrats. If partisanship is the standard by which to judge, then the Missouri plan has been an abject failure and deserves to be radically reformed or thrown out entirely.
I still believe that democratic judicial elections are the most effective way to ensure that judges are accountable to the people they serve. But Congressman Hulshof’s plan should separate the real proponents of ensuring that “merit” is part of the judicial selection process from those who just want to turn the job over to lawyers in order to advance their own political interests.
Posted by Dan Pero in the categories: Judicial Elections, Justice at Stake, Missouri
2 Responses to “Reform Plan A Test Case For Supporters of “Merit” Selection”
I don’t normally respond to comments on something I said to a reporter but I thought two factual corrections might be useful.
First, Representative Hulsof’s proposal would not change the number of lay commissioners appointed by the Governor. It’s three under both his proposal and the current plan. He proposes that the commission submit five rather than three *nominees* but doesn’t change the number of lay commissioners.
Second, it’s hard to characterize my comment as a “voters are too stupid” argument since neither the existing plan nor the Hulshof plan has voter involvement. Hulshof proposes a panel with four randomly selected judges (3 retired and one sitting). The current plan has one with one sitting judge and three practicing lawyers. In both cases, the remaining three are citizens appointed by a governor. In neither case do the voters (as a whole) have any say in the selection of four members and they have an indirect say (through the governor) in three.
I have a great deal of faith in the voters of Missouri. They voted to adopt the Missouri plan in 1940. They reaffirmed that decision in 1945 and 1976. They have resisted efforts to undermine the plan. A number of counties have voluntarily adopted it for their trial judges and it looks like conservative Greene County will do so this fall. And Kenny Hulshof has announced that he favors extending the plan to Greene County.
[...] Surprise, surprise. Prime Buzz reports that the Missouri Bar Association has come out against a proposal by gubernatorial candidate Kenny Hulshof to reduce the influence of legal special interest groups (like the Bar Association) in selecting Missouri judges. Prime Buzz has posted the full text of the Bar Association’s statement. You can read my previous post on the Hulshof plan here. [...]