Law Matters: Reflections of Chief Justice

Tuesday, November 29, 2005

The following is a column by the chief justice of Missouri. Included at the end of the column are discussion questions provided by The Missouri Bar and the Missouri Press Association's Newspapers in Education program for use by study groups as well as high school and college classes.

How We Choose Missouri Judges

By Michael A. Wolff

If you were to write a constitution to set up a system of courts, how would you select the judges? The writers of Missouri's first constitution set up a court system in which the governor appointed judges who were subject to confirmation by a majority vote of the state senate and then served for life. In doing so, they copied the United States constitution's method for appointing federal judges.

But Missouri's 1820 constitutional writers added another provision not found in the federal system: Rather than allowing a judge to be removed by impeachment, which is provided for in the federal constitution, the Missouri constitution provided that a judge could be removed from office by a vote of two-thirds of the members of each house of the general assembly.

This system lasted about 30 years. During the 1830s and 1840s, people in various parts of the country opposed the so-called "elites" whom governors appointed. These populists urged for the direct election -- by the people -- of their judges. Probably more to the point, many lawyers of the era believed that the popular election of judges would enhance their legitimacy because then they would be answerable to the people. These beliefs influenced Missouri voters, who in 1848 changed the state's constitution to require judges to be elected rather than appointed. The first judges were elected under this new system in 1850.

Popular election of judges in Missouri continues to this day in 110 of the state's 114 counties, which constitute 40 of the state's 45 judicial circuits. Voters choose these courts' judges in popular elections in which judges and judicial candidates alike are designated by their political party affiliation. This system seems well-suited for the rural areas of Missouri, which are small enough so that campaigns are not especially expensive and the voters can get to know the judges and judicial candidates before they cast their votes.

This type of system has not fared well, however, in other states that continue to elect all their judges -- including those on the state's highest court -- in contested political elections. A growing number of these states -- including our neighbor, Illinois -- have witnessed high-dollar campaigns for their Supreme Court judicial races. These campaigns frequently top the $1 million mark per candidate and have become notorious for their scathing television ads of increasing nastiness. Just last fall, more than $10 million was spent on a two-way race for one geographic district seat on the Illinois Supreme Court, making it the most expensive judicial campaign in American history. Money from these campaigns comes not from large numbers of individual citizens but rather from special interest groups. In those states, one candidate might be backed by the lawyers who bring personal injury lawsuits, and other candidates may be supported financially by business interests and insurance companies. The effect of this kind of campaigning has been to diminish the public's trust and confidence in those judges who are elected.

In Missouri, problems with partisan elections developed in the 1920s and 1930s. During those years, judges on the Supreme Court, the three geographic districts of the Court of Appeals, and two metropolitan trial courts were selected in elections in which nominees were chosen by political parties under a patronage system.

This patronage system rewarded judicial candidates for their faithfulness to the political party and not necessarily for their competence or experience. As a result, the public suffered. In St. Louis, a person without any legal training or experience was elected to become a judge, and through the rest of the state, Kansas City's notorious "Boss" Tom Pendergast hand-picked judges for the benefit of his powerful political machine rather than for the best interest of the people. Judges were plagued by outside political influences, and dockets were congested due to the time the judges spent making political appearances and campaigning.

By 1940, Missourians had endured enough political corruption in judicial selection. A group of citizens, business and civic leaders, and lawyers -- intent on reforming judicial selection in the state -- successfully placed on the ballot an initiative petition to limit the influence of politics on the selection of judges on the Supreme Court, the Court of Appeals and the trial courts in Jackson County and St. Louis city by establishing the Missouri Nonpartisan Court Plan. During the November 1940 election, voters statewide adopted the nonpartisan plan with nearly 55 percent of the vote.

Acting under a local option provision in the constitution, voters in Clay, Platte and St. Louis counties later adopted the nonpartisan court plan for their trial judges.

Under the nonpartisan court plan, any person who meets certain constitutional requirements may apply for a judicial vacancy. From that pool of applicants, a commission consisting of citizens, attorneys and a judge selects three candidates for the judicial vacancy. The commission forwards these candidates' names to the governor, who then selects a judge from among the three candidates. After the judge has served on the bench for at least a year, the judge stands for retention by the voters at the next general election. A simple majority of "yes" votes suffices to keep the judge in office for a full term.

Unlike judges in the federal system, judges in Missouri do not serve for life. Regardless of whether they are elected or selected under the nonpartisan court plan, a judge serves only a specified term of years, which varies from four years to 12 years depending on the level of the court on which the judge sits. In addition, the Missouri constitution requires all state judges to retire at age 70.

Under any system of judicial selection, it takes some effort to get to know a judicial candidate. This is true whether the judge is running for election or standing for retention by the voters. In the retention election, The Missouri Bar for years has attempted to fill this information gap by surveying lawyers who appear before the judges who are on the ballot. The judges are rated on a number of factors -- including knowledge of the law, courtesy and judicial temperament -- and the results of the survey are publicized widely.

This unique judicial selection and retention method -- first developed more than 65 years ago in Missouri -- has been adopted, in some form, in more than 30 states for its virtues, including the screening of candidates for their qualifications. Its eradication of partisan contested elections for the judicial offices to which it applies also eliminates the need to raise money, seek political endorsements, and conduct regional or statewide campaigns for partisan contested elections.

Regardless of the manner in which they are selected for office, however, all Missouri state judges remain accountable to the voters through the electoral process, be it through a partisan ballot or a retention ballot.

In the nonpartisan plan's 65-year history in Missouri, only two judges have been turned out of office in trial courts and none in the appellate courts.

Similarly, judges in contested electoral contests rarely are voted out of office.

Since the inception of the Missouri nonpartisan plan, our blended system of selecting and retaining judges has provided for a remarkable degree of stability in the courts. All of us who serve as judges of the state courts hope this reflects a high degree of popular satisfaction with the fairness, impartiality and ability of our court system to decide disputes independently of the influences of partisan politics or the narrow concerns of special interest groups.

Discussion Questions: Why the Rule of Law?

These questions were developed by The Missouri Bar in collaboration with the Newspapers in Education program of the Missouri Press Association. For additional information, please contact Millie Aulbur at milliea@mobar.org.

1. How would you answer Judge Wolff's question: "If you were to write a constitution to set up a system of courts, how would you select the judges?"

2. What are the dangers with special interest groups contributing large sums of money to elect a particular judge? Is a retention election inherently less dangerous than an election in which two candidates are vying for a judgeship?

3. How are both the federal and Missouri plans for selection of judges consistent with the concept of representative democracy?

4. What are the similarities and differences between federal and state selection of judges? What do you view as the strengths and possible weaknesses of both?