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Missouri voters will have the opportunity in November to vote on a bad idea whose time, unfortunately, may have come. For years, a handful of right-leaning political donors has been trying to change how Missouri selects judges for the state’s supreme court and court of appeals. Constitutional Amendment No. 3, which the legislature proposes, is the product of these efforts.
Before we consider proposed changes, let’s begin by understanding the current system, which Missouri’s voters first adopted in 1940. When there is a vacancy on Missouri’s Supreme Court or court of appeals, the governor appoints one of three nominees selected by a seven-member nonpartisan nominating commission. The nominating commission has three non-lawyers appointed by a governor for six-year staggered terms; three lawyers elected by members of the Missouri Bar; and the seventh member is a supreme court judge, usually the chief justice. When the governor picks a new judge – from the commission’s three nominees – the voters then decide whether the judge should be retained in office for a 12-year term, or until mandatory retirement at age 70.
Does the current system take politics out of judicial selection? No. Frankly, no one has figured out how to do that. But the influence of partisan politics is limited under the current system. A governor cannot control the nominating commission. In my experience the commission takes its role seriously. Merit does matter. I never have doubted that the commission’s nominees were qualified, though at times I have thought that the commission could have made better choices. In a very common-sense way, the current nonpartisan system has checks and balances that make it difficult for a politician or for lawyers to control.
So how do legislators – doing the bidding of their wealthy donors – propose to change our system of choosing judges? There are several details, but two are notable. They propose, first, that the governor be able to name a voting majority of the commission, and second, that the governor not be restricted to appointing only non-lawyers to the commission – the governor could appoint lawyers as a majority of the commission.
Under proposed Amendment 3, the appointment of judges would be completely under the political control of the governor. A governor, any governor, needs major campaign donations to win office. The ultimate result of Amendment 3 is that wealthy campaign donors may determine who gets selected as judges, and merit may not matter.
Ironically, right-leaning critics of the current plan – who proposed Amendment 3 – long have complained that our current plan is too political and that it is dominated by lawyers. So why, then, are they asking us voters to make the plan more political and give lawyers more control?
And what about the current system’s checks and balances? They would disappear. But perhaps the only checks that matter to legislators who endorsed these proposed changes are the checks that increase the balances in their campaign accounts.
As voters, let’s ask two questions: First, is our Missouri nonpartisan system of selecting judges broken? If it ain’t broke, as the saying goes, do not fix it. Second, will the proposal to put the system under the complete control of the governor and lawyers fix it or make it worse? While the current nonpartisan court plan may not be perfect, the proposed amendment is a bad idea that would make the system worse. We voters should say no to Constitutional Amendment 3.
(The opinions expressed are not necessarily those of St. Louis Public Radio.)
Michael A. Wolff is a professor of law at Saint Louis University School of Law and co-director of its Center for the Interdisciplinary Study of Law. He was a judge of the Supreme Court of Missouri from August 1998 to August 2011, and served a two-year term as Chief Justice from July 2005 to June 2007. Prior to his judicial service, Judge Wolff was on the faculty of Saint Louis University School of Law for 23 years, was active in trial practice and was co-author of Federal Jury Practice and Instructions and numerous other legal publications. Judge Wolff is a graduate of Dartmouth College, where he was editor-in-chief of the daily newspaper, and the University of Minnesota Law School. During law school he was a reporter for The Minneapolis Star.