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

Since the United States Constitution was ratified in the late-18th century, the question of state judge selection has been an important topic in legal theory. Since 1976, it has been one of the most widely debated issues in law school journals throughout the country (DuBois, 1986, p. 31). The main question that is pondered is whether judges should be independent on the bench or accountable to constituents. The five main methods of selection are: Gubernatorial Appointment, Legislative Election, Partisan Election, Non-Partisan Election and the “Missouri Plan” (Baum, 2007, p. 107). For the purposes of this paper, each of these five methods can be classified as either election-based or merit-based. I argue that the Missouri plan is more effective than partisan elections because it helps maintain objective decisions by state judges. Compared to a judge standing for election, the Missouri plan takes into account qualifications over popularity. The end result is an insular decision-making environment, sealed from issues of popularity, allowing objective decisions to be rendered.

While the Missouri Plan does not involve elections, it is a fair compromise to partisan elections. The governor of the state, who is elected by the people, nominates the state candidate to fulfill a state judgeship vacancy. When making a nomination, the governor is assisted by an administrative body, which includes lawyers who are members of the state bar (Webster, 1995, p. 27). While the governor can be subject to the popularity of their constituency, the nominated state judge is not. Thus, once a judge is on the bench, they should be unconcerned about making a decision that is unpopular with the public (Webster, 1995, p. 12). Instead, they should focus on what really matters: upholding the laws of the state.

To begin, most critics of the Missouri plan contend that separating politics from judges is impossible to accomplish. According to attorney Ryan M. Harding (1969): “You cannot take the judiciary out of politics. Judges, by the very nature of their office, are involved in policy-making decisions, and the determination of policy is in fact a political act” (p. 1164). While it is true that a judge’s decision would have political implications on the bench, this does not mean that the judge has to make decisions based on the whims of the public.

Conversely, attorney John Remsen argues (1999) that state judges should be left out of their selection. He believes:

Good politicians often do not make good judges, and good judges often do not make good politicians, and, as Lord Halifax said, ‘True merit, like a river, the deeper it is the less noise it makes’ (p. 4).

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Many proponents of the Missouri plan believe that judges do not have to campaign. Rather, a judge’s qualifications should speak for the candidate when nominated by the state governor. The Missouri plan capitalizes on qualifications over popularity because its main function is to seek the most qualified judges for the bench.

Law Professor Robert Davidow addresses the concern Missouri plan opponents who point out that the judge is not accountable to the constituency. Rather than the Missouri Plan’s opponents’ comparison of a judge to a politician, Davidow believes that judges are more like a jury panel. He explains (1989, p. 723):

Judge and jury perform very similar, although not identical, functions. While the chief function of jurors is to make findings of historical fact, judges also perform this function when trying cases without jurors and when ruling on such matters as motions to suppress evidence in criminal cases. Both jurors and judges apply legal principles to historical facts. Judges, however, establish the legal principles to apply, whereas jurors presumably accept instructions from judges as to the applicable legal principles.

Since the judge has legal training, a judge’s job is simply to apply formal judicial rules in the courtroom. Even when a jury is absent in a judge’s courtroom, the judge will be, according to political science professor Bradley Cannon (1988/89), “…someone who identifies with no group, advances no interest, prefers no particular policy, and has no ties to the litigants at the bar…” (p. 747).

Opponents argue that the Missouri Plan tips the scales of independence and accountability in favor of the former. They claim that, if a judge is not elected by the people, then the interests of the constituency is not represented. U.S. Department of State Legal Advising Assistant David Pozen writes (2008):

Public participation should not be attenuated by an appointive scheme, in which judges are chosen not by the voters but by the voters’ representatives, or, worse yet, by a merit selection scheme, in which unelected cognoscenti are allowed to narrow the field (p. 273).

While Pozen’s argument is valid, it is important to keep in mind that it is only argued by one person. However, this is not to say that other people do not hold his view. Rather than examining the constituents of state electing judges directly, we can instead shift our attention to how the majority of states react to merit selection. For 34 states and the District of Columbia (D.C.), merit selection has been adopted in some form for over two decades (Remsen, 1999, p. 2). Since none of these territories have reverted back to holding elections during this time, we can assume that the public in these places are content with how they are represented.

Opponents of the Missouri Plan have likewise argued that these territories have not adopted merit selection in a standardized form (Hanssen, 2002, p. 83). This will, according to proponents, inevitably cause confusion among other states. However, the proponents’ retort to this argument is that each state and district has adopted merit selection to fit their own particular needs. There is no standard for enforcing merit selection because each state has its own distinctive socio-political landscape. This is evident because, over many years, each state has spent considerable amounts of time and money creating state laws that maintain merit selection (Hanssen, 2002, p. 83). To change these majoritarian state laws would be unnecessary because, not only have the majority of people indicated content with merit selection in the majority of states, but resource expenditures towards changing these laws would be significant.

Proponents of the Missouri Plan oppose partisan elections because objective decision-making for judge selection can be distorted. As Steven P. Croley writes (1995), the end result could resemble nothing more than a popularity contest:

Scrupulous judges, who refuse to respond to majoritarian pressures, may as a result be removed from office and replaced with unscrupulous judges. Over time, this phenomenon would create a systemic bias in favor of judges most responsive to majoritarian pressures (p. 727).

Both proponents and opponents of the Missouri Plan would likely agree that the judge must pay at least some attention to how the public reacts in light of a court’s ruling. To ignore these ramifications would be like, as former U.S. Supreme Court Associate Justice Sandra Day O’Connor put it, “...like ignoring a crocodile in your bathtub...” (Pozen, 2008, 281).

Thus, independence and accountability must be balanced and maintained by a sitting state judge. However, when a judge consistently defers to the public instead of upholding the law, they become vulnerable to corruption. A judge that is corrupted is neither independent nor accountable.Continued on Next Page »

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