This article first appeared in the St. Louis Beacon, May 4, 2012 - Conservative critics of Missouri’s 70-year-old system for choosing judges for the state’s highest courts appear to finally be on their way to geting a proposal before voters that would change the process.
Backers say the proposal that passed the Senate this week, and is on its way through the House, would curb the power of the Missouri Bar – the state’s association for 29,000 lawyers -- and increase the clout of whoever is governor.
Opponents, including the Missouri Bar, say the changes would make Missouri’s system – officially known as the “Nonpartisan Court Plan” – more political and more beholden to powerful politicians.
Missouri House Speaker Steve Tilley, R-Perryville, said in an interview that he believes the proposed changes would “put more accountability’’ into the process. Tilley added that he expects the Senate proposal to get through the state House before the legislative session ends May 18.
A hearing on Senate Joint Resolution 51 is slated for Monday before the House’s special committee charged with focusing on the state’s judicial-selection system and how it might be changed.
The House passed an earlier version, HJR 44, that called for even more changes. With the Senate’s vote, SJR 51 has the momentum.
A joint resolution would go directly onto the November ballot. It needs no signature from Gov. Jay Nixon -- a Democrat who opposes changing the current system. The proposed constitutional amendment would require a simple majority to pass.
The Senate generally has been the burial ground for earlier efforts to change the judicial-selection process.
A big difference this time, say some opponents, has been the presence of lobbyists pressing for the Senate changes. It’s unclear who is paying for those lobbyists, since such details do not need to be filed with the Missouri Ethics Commission.
Missouri Bar president Lynn Whaley Vogel pointed out that the Missouri Supreme Court and the judicial-selection commissions made changes a few years ago so that their process is more open. The questionnaires filled out by applicants for top judgeships, for example, are now accessible by the public.
She contended that some of the opponents, meanwhile, are "hiding behind PACs and lobbyists," and not making their identities known. "We believe some of this is being financed with outside, national money," she said.
James Harris, executive director of Better Courts for Missouri -- a group seeking changes in the judicial-selection process for years -- acknowledged that the coalition of like-minded groups has changed.
Some of the groups have lobbyists, he said.
The coalition includes Associated Industries of Missouri, the Associated Builders and Contractors, as well as such conservative groups as the Eagle Forum, the Missouri Family Network, the St. Louis Tea Party, and Americans for Prosperity, Harris said.
Changes increase power of governor
Under the current setup, stipulated in Missouri’s constitution, the governor selects the judges who serve on the state Supreme Court, the appeals courts and in the circuits in St. Louis, St Louis County and Jackson County, which includes Kansas City.
The governor chooses from three nominees who, in turn, have been selected by special commissions that include an equal number of lawyers, people chosen by the governor, plus the state’s chief justice on the Missouri Supreme Court.
The gubernatorial appointees also are under staggered terms, so that the sitting governor would not have selected all of them during his or her four-year term.
Under the Senate proposal, the governor would choose four people to serve on the selection commission, and all would be named during the governor’s term. The Bar would have three representatives. The chief justice would no longer sit on the panel and would be replaced by a non-voting retired judge.
The upshot: A governor’s power in the judicial selection process would increase.
Nixon’s predecessor as governor, Republican Matt Blunt, had complained publicly that he believed he had too little power in the process and that he too often had to choose judges from three-candidate panels that he considered too liberal.
Harris, a former aide to Blunt, called the Senate proposal "a good modest step that will improve the judicial selection process."
"It will help reduce the influence of special interests," he added.
Bar president Vogel contended that the proposed changes would do just the opposite. "This is not a small change. Their intent is political," she said. "This gives all the power on the commission to a governor."
The Missouri Bar said in a statement, issued before the final Senate vote, that SJR 51 “would effectively eliminate Missouri’s merit-based judicial selection process. “
Opponents feared alternatives would be worse
During the Senate debate, some senators said they were backing SJR 51 because they feared other proposals were more onerous. For years, some proposals have sought to require state Senate confirmation of such judges.
Other proposed changes have called for the direct election of all Missouri judges , which is what now takes place in jurisdictions outside the St. Louis, St. Louis County and Kansas City circuits.
Still, even the chief Senate sponsor – state Sen. Jim Lembke, R-Lemay – has said that he has been somewhat surprised that his proposal has gotten so far. He has made unsuccessful attempts for years, in the Senate and earlier in the state House.
“I don’t think that I ever thought it would happen in the General Assembly,” Lembke said.
The vote to send the Senate resolution to the House was relatively close, 19-12, considering the overwhelming GOP edge in both changes.
Four Republicans joined Democrats in opposing the measure: Sens. Eric Schmitt, R-Glendale; Kurt Schaefer, R-Columbia; Rob Schaaf, R-St. Joseph; and David Pearce, R-Warrensburg .
Lembke believed that those considering the usual Senate filibuster opted against it, in the wake of a threatened initiative-petition campaign that would call for all-out elections of judges.
“I think there is a group of senators and representatives on both sides of this issue that believe if we make the change, some modest change, to the Missouri Plan, that effort won’t come forward,” Lembke said.
Sen. Joe Keaveny, D-St. Louis, agreed with that assessment. “The short answer is, ‘It could have been much worse.’ ”
“The threat was if we didn’t agree to a compromise that there’d be a ballot initiative calling for the direct election of judges throughout the state.”
“And there was a concern that kind of ballot language might pass,” Keaveny added. “Only time will tell if that strategy will pay off.”
Both Lembke and Keaveny noted that both sides of a potential ballot initiative could be well-funded and well-organized. Conservative publications – such as the Wall Street Journal and the National Review – have been running editorials calling for changes in the Missouri Plan, perhaps a signal that there might be national support for the proposed constitutional amendment.
Bar president Vogel said she expected that many of its member lawyers will campaign against SJR 51.
“I would expect a very vigorous campaign when it finally goes to the voters,” Keaveny said. “The positive side of this is this isn’t a law – this is going to appear on the ballot.”
Lembke said there will be “a substantial amount of investment on both sides on this issue as far as making their case with the people of Missouri.”
Donors on both sides of such a campaign would have to be identified on campaign-finance documents filed with the Missouri Ethics Commission.
