Once again, opponents of the nonpartisan Missouri Plan are on the attack, and once again a centerpiece of that attack is the claim that Judge Lisa White Hardwick is too liberal to have been chosen as one of three nominees for the open position on the Missouri Supreme Court.
This view of Hardwick has always been strange. After all, in 2007, plan opponents criticized the nominating commission for failing to nominate her and praised her outstanding academic credentials, her work as a partner in a major Kansas City law firm and her experience as a trial and appellate judge.
However, less than a year later, when the commission did nominate Hardwick, plan opponents inexplicably reversed course. The Wall Street Journal went from calling her an “impressive candidate” who was independent of the Missouri legal establishment to castigating her as a “left-leaning” favorite of that establishment. The leading anti-Missouri Plan organization went from lauding Hardwick’s impressive credentials to claiming that its examination of her record proved her to be a judicial activist who legislates from the bench.
As someone who studies Missouri courts on an almost daily basis, I found these claims exceptionally unlikely to be accurate. My knowledge of Hardwick’s published opinions suggested that she was a judicial centrist with no particular agenda, a consensus builder within the court and an excellent judicial craftsperson.
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However, as a scholar, I thought I should test the critics’ claims empirically by analyzing Hardwick’s votes on the Court of Appeals in every one of 2,340 cases available in the Westlaw database. I compared her votes with those of three groups of judges.
First, I compared Hardwick’s votes with those of the 10 judges appointed by Democratic governors Mel Carnahan, Bob Holden and Jay Nixon. Second, I compared her votes to those of the seven judges appointed by Republican governors John Ashcroft and Matt Blunt. Third, to give an even sharper focus, I compared Hardwick’s votes to those of three Ashcroft-appointed judges whom Missouri Plan opponents have praised as non-activist judicial conservatives: James Smart, Paul Spinden and Robert Ulrich.
The results of this study decisively refuted the critics’ claims. If Hardwick’s critics were correct, one would expect that her votes would mirror those of the Democratic Ten but rarely coincide with those of the Republican Seven. Even more clearly, one would certainly expect that Hardwick’s votes would not mirror those of the Ashcroft Three. The facts showed the opposite:
▪ In the vast majority (more than 98 percent) of the 2,340 cases, every sitting judge — Democratic and Republican appointees alike — agreed with Hardwick.
▪ Hardwick sat on 46 non-unanimous cases, where one or more judges dissented. There, her rate of agreement with the Republican Seven (63 percent) was significantly higher than her rate of agreement with the Democratic Ten (48 percent).
▪ Even when I focused solely on the Ashcroft Three — lauded by plan opponents as conservatives — the result was essentially the same. Hardwick’s rate of agreement with the Ashcroft Three (60 percent) was still significantly higher than her rate of agreement with the Democratic Ten (48 percent).
Does this study demonstrate that Gov. Eric Greitens should appoint Hardwick? Of course not. But it decisively refutes the notion that she is a left-leaning judicial activist whose judicial philosophy is meaningfully different from the views of her Ashcroft- or Blunt-appointed brethren on the court. It demonstrates what most serious, impartial students of Missouri courts have known for years: The Missouri Plan works.
By nominating W. Brent Powell, Benjamin Lipman and Lisa White Hardwick, the judicial nominating commission has given Greitens a panel of three outstanding candidates. The governor could justifiably be proud to choose any one of them. He should base that choice on facts, not misleading attacks.
David Achtenberg is professor of law and Law Foundation scholar at UMKC School of Law. The opinions here are his own.