In a letter to the St. Louis Post-Dispatch today, a Maryland Heights man opened with a sweeping statement:

U.S. District Court Judge Vaughn Walker overturned the majority wish of the people of California regarding Proposition 8. It really stinks because the people have spoken, but a judge can ignore it. Democracy is government of the people, by the people and for the people. The people of California have spoken loud and clear, yet, their will was overturned by a judge with the stroke of a pen.

Unfortunately he is not only wrong but confused abut the role of the court. Our particular democracy is a constitutional democracy.  Which is to say it is not just government by the people, but government by the people within the limits of a constitution. It is the job of the courts to determine whether or not the will of the people exceeds or conforms to those limits – they are actually constrained from taking the vagaries of popular opinion into account unless it pertains to the givens of the constitution. To judge by conservative rhetoric, the letter writer shares a common misconception that courts should bow to the popular will.*

Which is why is is heartening to learn that retired Supreme Court Justice, Sandra Day O’Connor, is actively seeking to inform the public about the importance of the judicial system and to insure that it remains an institution in which we can continue to have pride. Rather than endorsing our Maryland Heights letter writer’s desire for greater electoral influence in the courts, O’Connor instead argues for greater impartiality. To achieve this goal, she endorses merit based selection of judges or a system of public financing of judicial elections. In her introduction to a new report on the crisis of perception facing the court, she singles out as a model the system of judicial selection used in Arizona, which – wait for it – was copied from the Missouri system, or the Missouri Plan as it is known:

The crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.

To avoid this outcome, state should look to reforms that take political pressure out of the judicial selection process. In recent years, I h ave advocated the system used in my home state of Arizona, where a bipartisan nominating committee recommends a pool of qualified candidates from which the governor appoints judges to fill vacancies. Voters then hold judges accountable in retention elections

Not surprising since more than 30 states have a similar system, but it does make me feel a little smug. Not just because Missouri got it right – or mostly right – but because we fought off a big-time, big money effort to bury the Missouri plan in favor of direct judicial elections just this year.

There are many reasons why we can all be happy that the Missouri Judicial Selection Amendment failed to collect sufficient signatures to make it to the November ballot. Lately, I haven’t felt too confident about the trajectory of Missouri politics – just read my earlier post about Brian Nieves and you too might wonder just what kind of people elect politicians like Nieves to make vital decisions abut their lives. However, I can at least feel good about how we select our judges – and secure that a majority of my fellow Missourians understand and respect the process.

* ADDENDUM:  Conservatives seem to think that the courts should adhere to popular sentiment as expressed in a vote, whether conformable to constitutional requirements or not, or, alternatively, they seem to think that the constitution is tied to a rigidly detailed framework of beliefs espoused by a few of the framers who were involved in negotiating the document.  Which belief is expressed at any particular time evidently depends on whether or not a particular framer can be found who at any time expressed views compatible with those of the conservative in question. Rich conservatives and corporate interests really like using their “freedom of speech” (i.e. cash) to make sure that we select judges in such a way that they can be sure they will be able to shop around for one who will support either of these points of view when convenient.