Assessing State Judicial Selection: The Missouri Plan vs. Partisan Elections

The partisan election dictates that the incumbent state judge has to periodically stand for re-election. During these re-election campaigns, distortion and imbalance can easily occur because of money. According to the Public Affairs Research Council of Louisiana (2009):

Campaign success is clearly linked with campaign spending. Judicial campaign finance reports from 2000 to 2002 show that 68% of the elections during that period were won by the candidate that reported the largest total expenditures. On average, winning judicial candidates spent over $40,000 (34%) more than their second place challengers. This trend has been consistent for the past several election cycles (p. 580).

While not always true, a candidate who spends more money on their campaign can afford to increase their public visibility. Among many methods to boost visibility, candidates can buy television air time, hand-out fliers and create websites. When the public is bombarded with all of this attention focused on one candidate, the odds are stacked in this candidate’s favor that they will ultimately win the election. This can be true regardless of whether or not the candidate is qualified to sit on the bench.

Compared to large-scale elections, candidates in small-scale elections usually do not spend as much money (Kaminsky, 1979, p. 497). As a result, when voters reach the polls, each candidate’s small or non-existent advertising campaign would impart virtually no information on the stances of each candidate (Webster, 1995, p. 13-14). However, this is assuming the best-case scenario, as many voters may become apathetic and not even vote in the election. This can be problematic because, as proponents of partisan election point out, this is the chance for the citizenry to vote for or against a judge. As Peter Webster writes (1995):

Many commentators question the validity of the initial premise of proponents of partisan elections—that partisan elections ensure judicial accountability. Commentators point out that most judges in states which use partisan elections initially reach the bench by interim appointment to an unexpired term, and are then re-elected periodically, more often than not without opposition (p. 16).

Since voters’ have not carefully researched each candidate, the “will of the people” can hardly be exercised. Voter apathy, in this case, is not without reason because voters have not been educated by the incumbent’s opponents. If the incumbent is going to win anyways, even if unqualified, the voters feel no need to vote.

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On the other hand, the Missouri Plan solves a lot of the negative politicking issues that arises from partisan elections. Many of its basic tenets echo Alexander Hamilton’s writings from Federalist no. 78. Hamilton writes (1788):

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

For partisan elections, while there are some strict rules, many do not prevent shrewd politicking among interest groups, constituents and candidates. The Missouri Plan is different because it advocates an exhaustive screening process by the governor and their selection committee. Information gathered and examined by the committee include: tax records, background checks and personal interviews (Remsen, 1999, p. 6).

In conclusion, I maintain that the Missouri Plan is a superior method over the partisan election to select state judges. For one, I agree with Robert Davidow’s argument that the state judge is more akin to a jury than a politician. While state judges who reach the bench through the Missouri Plan do make rulings that affect policies, the key difference is what motivates the ruling. The Missouri Plan effectively eliminates public scrutiny when a judge considers the long-term effects of their decision. Instead, they can focus on maintaining the laws of the state.

While partisan election opponents have argued that the judge is someone too far-removed from the needs of the constituency, this is far from the truth. While this argument argues for constituent popularity at one state’s level, the vast majority of states already use some form of the Missouri Plan during their judge selections. Since these appointive methods are still used, it is fair to argue that these states are content placing the ideals of the Missouri Plan for their own needs.

The behind-the-scenes politicking during partisan elections prevents fair-minded judges from reaching the bench. While politics will always be present in state judge selection, judges selected by partisan election are obliged to rule on popular decisions because re-election chances hang in the balance of the public. In sacrificing the ideals of laws, the judge ignores that these laws were implemented for the common good of a state’s constituency. The Missouri Plan alleviates all of these problems by assembling a body of panelists who vigorously investigate each judicial nominee. When this method is used, judges reach the bench based on merit, rather than possible ineptitude hidden behind popularity.

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References

Baum, L. (2007). American Courts: Process and Policy. New York, NY: Houghton Mifflin Press.

Canon, B.C. (1988/89). Commentary on State Selection of Judges. Kentucky Law Journal. 747-757.

Croley, S.P. (1995). The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law. The University of Chicago Law Review. 62 (2), 689-794.

Davidow, R.P. (1989). The Search for Competent and Representative Judges, Continued. Kentucky Law Journal. 723, 723-739.

DuBois, P.L. (1990). The Politics of Innovation in State Courts: The Merit Plan of Judicial Selection. Publius: The Journal of Federalism. 20, 23-43

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Hanssen, F.A. (2002). On the Politics of Judicial Selection: Lawyers and State Campaigns for the Merit Plan. Public Choice. 110 (1/2), 79-97.

Harding, R.M. (1969). The Case for Partisan Election of Judges. American Bar Association Journal. 55, 1162-1164.

Kaminsky, M.I. (1979). Available Compromises for Continued Judicial Selection Reform. The St. John’s Law Review. 53 (466), 466-516

Pozen, D.E. (2008). The Irony of Judicial Elections. The Columbia Law Review. 108 (2), 265-328.

Public Affairs Council of Louisiana. (2003, April 24). Par says merit selection of judges should be considered. Retrieved from http://www.parlouisiana.com/explore.cfm/parpublications/commentaries/100087

Remsen, J.L. (1999). Is Merit Selection and Retention of Judges a Good Idea? Two Lawyers Knowledgeable on the Issue Update their 1990 News Debate. Yes: We’ll Get Better Judges. The Florida Bar News. 1-12.

Webster, P.D. (1995). Selection and Retention of Judges: Is There One 'Best' Method? Florida State University Law Review. (1995): 1-39.

Yale Law School: The Avalon Project. (2011). The Federalist Papers : No. 78. http://avalon.law.yale.edu/18th_century/fed78.asp. (accessed October 29, 2011).