J For more than 70 years, Missouri has selected most of its judges using a process that has become a model for the nation.
On Nov. 6, voters will get the opportunity to change it.
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The Missouri House on Thursday narrowly passed a proposed constitutional amendment that, if approved by voters this fall, would give the governor more control over the selection of judges for the state Supreme Court and state Court of Appeals.
To its supporters, the change is an attempt to make the judicial branch more accountable.
“Right now, you have unelected lawyers with all the power,” said House Speaker Steve Tilley, a Perryville Republican, who called the House’s vote “historic.” “This puts the authority in the hands of the governor, who is ultimately held accountable by the people,” he said.
But critics contend it would give the governor too much authority and would inject politics into what should be a nonpartisan, merit system.
“This is not reform. It is radical destruction of the judiciary,” said Rep. Rory Ellinger, a University City Democrat.
Currently, the judicial selection commission consists of three attorneys appointed by the Missouri Bar Association, three gubernatorial appointees and a Supreme Court judge. The proposed amendment would replace the Supreme Court judge with another appointment by the governor.
If the amendment is approved by voters, it would be “disingenuous to continue calling this a ‘non-partisan’ plan. You can’t call it that when it puts sole power in the hands of one person,” said House Minority Leader Mike Talboy, a Kansas City Democrat.
Gov. Jay Nixon, a Democrat, could not immediately be reached for comment Thursday on what he thinks about the amendment.
But the Missouri Bar Association blasted the plan, saying it would give a governor “more power than the president” when it comes to choosing judges. “It gives governors unchecked power through control of a voting block of four of the seven commissioners two years into their first term,” said Missouri Bar President Lynn Whaley Vogel.
Missouri adopted its judicial selection process in 1940 to reduce the role of politics in the judiciary and lessen the influence of urban political machine bosses — specifically Kansas City’s “Boss Tom” Pendergast.
Under the system, the commission submits a panel of three finalists to the governor to fill court vacancies, and the governor must appoint a person from that list. After being appointed, judges must stand for periodic retention elections.
The goal is to select judges based on merit rather than on political affiliation, and more than 30 states eventually adopted some form of what’s called the “Missouri Plan.”
But opponents argue that politics can still play a role. In 2007, former Gov. Matt Blunt, a Republican, considered rejecting all three nominees for an opening on the Supreme Court. Since then, Republican lawmakers have tried numerous times to make changes to the plan, arguing that attorneys have gained too great a role in the nominating process.
“There is nothing about lawyers that uniquely qualify them to control selection of judges,” said Rep. Stanley Cox, a Sedalia Republican who co-sponsored the plan. “The power should be vested with the people.”
The problem with the current system isn’t that it’s overtly partisan, Tilley said. “It’s just dishonest,” he argued. “I think the average citizen should get to determine whether lawyers get to pick who our judges are or whether the governor that they elected should get a bigger say. I think average people want accountability.”
Tilley said he was actually surprised by the success of this year’s legislation. He’s been involved in efforts to change the process since 2007, and was not confident there was enough support in the House to pass the proposed amendment.
“I would say this is certainly one of the marquee things we’ve done this year and probably one of the top we’ve done in the past seven or eight years,” Tilley added.
The measure cleared the House on an 84-77 vote, with one Democrat joining the majority and 19 Republicans voting “no.” Last week, the Senate passed the measure 19-12 with four Republicans joining the eight Democrats in opposition.
Sen. Jolie Justus, a Kansas City Democrat, said she wasn’t sure how voters will decide because “on its face it doesn’t seem like a huge change. But it is a really big change. In the past no one governor could really have control of the commission that sends the slate of judges forward. This really would give a governor the ability to pack the courts.”
In Kansas, Gov. Sam Brownback supported a plan that would have given him the power to select appeals court judges, but the Senate rejected it.