JEFFERSON CITY, Mo. — The current vacancy on the Missouri Supreme Court has reignited debate about whether the way the state selects judges is a rigged system dominated by politics and trial attorneys or one that rightly champions merit.
The Appellate Judicial Commission recently submitted the names of three attorneys – Lisa Hardwick, Benjamin Lipman and W. Brent Powell – to the governor in the wake of Judge Richard Teitelman’s death last fall. Gov. Eric Greitens now has 60 days to select one of them to fill the vacancy under Missouri’s nonpartisan selection process.
But the Republican leader of the State Senate, Ron Richard, and others have criticized the nominees, saying that conservatives have not gotten a fair shake from the judicial panel. During his campaign for governor last year, Greitens favored replacing the current “assisted appointment” system.
“The Missouri Plan is broken,” James Harris, a Jefferson City political strategist, said, referring to the nonpartisan judicial nomination system. “The trial attorneys have gamed the system.”
Under the system, which dates back to the 1940s, the state's Supreme Court chief justice chairs a seven-member panel that fills vacancies on the Supreme Court and the Missouri Court of Appeals. The governor appoints three citizen members while the Missouri State Bar selects three attorneys to serve on the panel. Commissioners serve six-year terms and represent various geographic districts.
The panel reviews applications of those who want to fill the vacancies, interviews candidates and eventually sends the names of three nominees to the governor. If the governor fails to choose one of the nominees, the state constitution allows the commission to select the judge.
Harris, who characterizes the system as undemocratic, spearheaded an unsuccessful ballot measure in 2012 to give governors more leeway to choose a judicial candidate. Other states, such as Tennessee and Kansas, have tweaked their judicial selection process and so should Missouri, he said.
“This is out of sync with everything else in the state,” Harris told the St. Louis Record.
Both houses of the legislature are controlled by Republicans, a Republican was elected governor in November and six of eight members of Congress from Missouri are Republicans, he said.
“You have a good conservative governor who wants to move Missouri forward, and his hands are tied,” Harris said.
Of the trio of candidates proposed by the Appellate Judicial Commission, two are liberal, Harris said. Hardwick, who has both journalism and law degrees, now sits on the Missouri Court of Appeals, and Lipman is an attorney with Lewis Rice LLC in St. Louis who has a background in First Amendment litigation.
Harris and others have described Powell, a circuit judge in Jackson County, as more conservative than the others. In the judicial panel’s selection of nominees to fill the last 10 vacancies on the state Supreme Court, only three of 30 have been Republicans, he said.
And even with a Republican in the governor’s seat, the turnover of members on the Appellate Judicial Commission will take time, according to Harris. “(Former Gov.) Jay Nixon put all of his political hacks on the political panels,” he said.
Even so, the assisted appointment system remains the most widely used method of selecting judges. Twenty-four states have adopted the system to select supreme court judges, while 16 states choose high court judges using nonpartisan elections and seven make their selections through partisan elections, according to the nonprofit Ballotpedia.
Dana Tippin Cutler, president of the Missouri Bar, strongly defends the Missouri Nonpartisan Court Plan.
“The people of Missouri deserve skilled, fair and impartial judges, and the Missouri Plan continues to work for them by providing high-quality judges in the least political way while giving voters the final say,” Cutler told the St. Louis Record.
The plan requires a retention vote of the people after an appointed judge has served one year.
“Over the 76-year history of the Missouri Nonpartisan Court Plan, changes have been implemented to improve the process,” she said. “We would consider additional changes on a case-by-case basis to make sure the people of Missouri continue to have skilled, fair and impartial judges and to prevent partisan politics and money from being injected into our state’s courts.”
Missouri residents have voted repeatedly over the years to keep the current system in place, Cutler said.
“The Appellate Judicial Commission did its job in forwarding three qualified applicants to the governor for consideration,” she said. “It is now the governor’s turn to assess these applicants and decide who should serve the people of Missouri as our newest Supreme Court judge.”
Patricia Breckenridge, state Supreme Court chief Justice, also seemed to stand by the process when she spoke to a joint session of the legislature in January. Breckenridge said Greitens and many lawmakers have been supporting tort reforms in an attempt to balance the rights of plaintiffs and defendants in civil litigation.
“Do not view these calls for action as a condemnation of our judicial system,” she said.
The court system is staffed with talented people who want to ensure the system is fair to all litigants, Breckenridge said.
Other observers and lawmakers see tort reforms, such as controlling “frivolous litigation” that’s costly for businesses, as having a higher priority than changing the selection process. But Harris sees the selection process as secretive, with too much power in the hands of unelected, unaccountable lawyers.
“Trial attorneys are a bunch of elitists, and the courts are not here to serve them,” he said.