Judiciary the missing cog in GOP machine

By Marc Powers

Nevada Daily Mail

JEFFERSON CITY, Mo. -- As the party in control of both the executive and legislative branches, Republicans have the political power to dictate the policy agenda and bring radical change to state government. New Gov.

Matt Blunt and GOP legislative leaders have made clear their intent to do so.

Missouri government, however, is a three-legged stool and for Republicans one leg is missing -- the judicial branch.

After 12 years of Democratic governors deciding who sits on the appellate bench, the Missouri courts that will decide whether actions by the governor and legislature pass legal and constitutional muster are dominated by Democratic appointees and will remain so for years to come.

With the judiciary's role as a check against overreaching and abuses by the other branches, disputes between the branches over contentious legal issues inevitably arise regardless of the political affiliations of those involved.

During the recent election campaigns, it was a common Republican tactic to attack so-called "activist judges" whose rulings they disagree with.

Amid the lingering perception of a renegade court system, Missouri Supreme Court Chief Justice Ronnie White, a Democratic appointee, sought to clarify the role of the judiciary during an address before a joint session of the legislature last week.

While it is appropriate for elected officials such as governors and lawmakers to pursue policies to carry out the will of the people, White said judges are constrained by the state and federal constitutions, statutes enacted by the legislature and legal precedent.

"Taken together, this body of law preserves the will of the majority and the rights of the minority all at once, a tension that may result in decisions that, in some cases, are deemed by many to be unpopular," White said. "But popularity is not a criterion to be applied to judicial opinions."

House Speaker Rod Jetton, who played a part in the unsuccessful effort to oust Judge Richard Teitelman from the state high court last fall, said White's analysis of the relationship between the three branches of government resonated positively with Republicans.

"I think he struck a chord of agreement with most of the members on my side of the aisle to be sure," said Jetton, R-Marble Hill.

Blunt said he largely agrees with White's assessment but still feels judges too often legislate from the bench.

"An independent judiciary is an important balance that we have," Blunt said. "I'm concerned when we have judges that go beyond interpreting the law."

What differentiates a constitutionally sound but unpopular court decision from judicial activism, however, is usually in the eye of the beholder.

Judges appointed by Democratic governors currently hold a 5-2 majority on the state Supreme Court and also outnumber Republicans 19-13 on the Missouri Court of Appeals.

Although Blunt will fill any vacancies that open on both courts during the next four years, under Missouri's system for selecting judges he isn't assured of being able to choose candidates closely aligned with his constitutional philosophy. He might not even be guaranteed of getting to pick Republicans.

When a court vacancy occurs, the seven-member Appellate Judicial Commission selects three candidates for the opening. The governor must select one of them.

A member of the Supreme Court, by tradition the chief justice, leads the commission. The governor appoints three non-lawyer members and the remaining three spots are filled by lawyers elected by the Missouri Bar.

Except for the chief justice, a post that periodically rotates among high court members, commissioners serve six year terms. As a result, the three non-lawyer members currently on the commission were all appointed by Democratic governors.

Blunt won't be able to appoint a commissioner to represent his interests until January 2007.

Also, Democratic appointees are scheduled hold the post of chief justice until 2013.

The commission's newest member, Bill Burch of Sikeston, was recently appointed by former Gov. Bob Holden, a Democrat who left office Monday.

Unlike most gubernatorial appointees, those named to the judicial commission aren't subject to Senate confirmation. Therefore, Blunt was unable to rescind Burch's appointment, as he did with scores of other Holden nominations.

Although a politically active Democrat throughout his life, Burch said the primary standard he will apply in assessing candidates is integrity.

"I'm looking for somebody that is above reproach and of the highest honor," Burch said. "Just because I'm a Democrat doesn't mean I'll be looking for Democrats. I want the highest-qualified applicants."

Even if the commission sends Blunt politically favorable candidates, it likely will take years for Republicans to reclaim the judicial branch as judges tend to stay a long time once appointed.

After a 12-year run of GOP governors ended in 1993, it was another eight years before Democratic appointees claimed a majority on the Court of Appeals. The balance on the Supreme Court didn't tilt in favor of Democrats until 2002.