This article first appeared in the St. Louis Beacon, May 10, 2012 - The Missouri House has approved a proposed constitutional amendment altering how judges for the state’s Supreme Court and the Court of Appeals are selected, a move that sends the matter to the voters.
The amendment – sponsored by Sen. Jim Lembke, R-Lemay, in the Senate and Rep. Stan Cox, R-Sedalia, in the House – passed the General Assembly’s lower chamber Thursday by a 84-71 margin. Among other things the amendment would change the composition of the Appellate Judiciary Commission, which selects judges to the Missouri Supreme Court and the Missouri Court of Appeals.
Under the current system, 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, Jackson County and Greene County. The governor chooses from three nominees who have been selected by commissions that include an equal number of lawyers, people chosen by the governor and the state’s chief justice on the Missouri Supreme Court.
The amendment would replace the chief justice of the Missouri Supreme Court with another gubernatorial appointee, giving laypeople on the commission a 4-3 advantage. It would also allow a governor to select his commission appointees during his or her term in office, a move that would likely give the governor more influence over who the commission selects as judicial nominees. (Currently, the gubernatorial members of the commission are staggered, so some were named by a previous governor.)
The proposed amendment would not change the composition of commissions in St. Louis City, St. Louis County, Jackson County or Greene County.
Supporters – mainly Republicans – say the change to Missouri's judicial-selection process will provide more accountability, as opposed to the current system.
“The citizens through their elected executive will control the process and in turn hold the governor accountable,” Cox said. “The basic principle of government is accountability. If there’s nobody to hold accountable, how can we expect that the authority of citizens – the people of Missouri – will be included in this important coequal branch of government.”
But opponents of changing the plan have argued that providing the governor with more influence would effectively politicize the process. Some – such as Rep. Scott Sifton, D-Affton – noted there was nothing stopping a governor from appointing four attorneys to the commission.
“Why are you supporting scrapping the system that guarantees that you have three non-lawyers out of seven in favor of a system that gives the governor control of everything?” Sifton asked during an exchange with Cox. “You could have seven lawyers on the commission as a result of this change.”
In response, Cox said that even though this wasn’t exactly what he wanted, he added that it was best that could be done through the legislative process. Efforts to change the plan had been stymied in the Missouri Senate, so much so that Lembke said he was surprised it made it through the process.
“This is not the bill that I filed,” Cox said. “This is something I’ve been working on for five years. And this is something that other people have been working on longer than this, because they believe it is unfair to take away the power of the people and give it to the lawyers. Is this perfect bill? Of course not.”
“My intention is not to encourage the governor to appoint lawyers of all positions,” he added. “But it’s to give the governor authority to make a decision and in fact assure that the public has an input in the selection of the judiciary.”
Before the vote, Rep. Rory Ellinger, D-University City, said the amendment would give more power to a governor than even the president of the United States has, because even the president’s appointees have to go through the U.S. Senate. No comparable trajectory would exist under the amendment, he said.
“I do not want this governor or any governor to have the kind of power,” Ellinger said. “You are removing the safeguards that we put in place in 1940 where there was corruption in the Bar, where there were Supreme Court judges that did not follow the rule of law. And there were scandals. This conservative state led the nation in putting a little distance between what is popular today and the law.”
“We have no problem to solve here,” he added. “If you do not like some decision because it’s too liberal or whatever, you have a right to change the law. What the judiciary does is interpret what legislators adopt.”
The vote was closer than usual because a number of Republicans voted against the amendment. Only one Democrat – Rep. Penny Hubbard, D-St. Louis – voted for it.
Nixon defers comment
Asked about the amendment on Monday, Gov. Jay Nixon said “it’s only gotten through one of the houses – I haven’t had a chance to look at it yet in any great detail.” Nixon has traditionally opposed any changes to the plan.
“Obviously I’ve been a supporter of the plan in the past, but I’d have to look at whatever details they got,” Nixon said.
Nixon’s opinion on the matter doesn't affect whether the proposed amendment gets on the ballot. Constitutional amendments can only be approved by a public vote, and the legislative process to put the proposal on the ballot does not involve getting the governor's signature.
The proposed amendment would likely receive a public vote on the November ballot, although Nixon has the power to put the proposal on the August primary ballot instead. It would require a simple majority for passage.
