Actually, the constitutional amendment being proposed by Pervez Lembke to revise Missouri’s Non-Partisan Court Plan could be worse. At least he isn’t proposing that we Illinois-ize our system and elect all our judges. Kevin Horrigan, in his P-D column, explains how awful that would be:

On page 82 of John Grisham’s brand-new legal thriller, “The Appeal,” a billionaire chemical manufacturer named Carl Trudeau facing a $41 million civil judgment for poisoning a small town’s water supply is talking with a super-slick political fixer named Barry Rinehart:

Barry laughed and crossed his legs. “We do campaigns. Have a look.” He picked up a remote and pushed the button, and a large white screen dropped from the ceiling and covered most of the wall, then the entire nation appeared. Most of the states were in green, the rest were in a soft yellow. “Thirty-one states elect their appellate and supreme court judges. They are in green. The yellow ones have the good sense to appoint their courts. We make our living in the green ones.”

“Judicial elections.”

“Yes. That’s all we do, and we do it very quietly. When our clients need help, we target a supreme court justice who is not particularly friendly, and we take him, or her, out of the picture.”

No, Lembke isn’t suggesting all judges be elected. He knows enough to stop short of that. Still, he’s aiming to hamstring the plan that’s been a model for 34 other states. If opponents of non-partisan judicial selection can cripple it in its birthplace, they can move on next to the states that copied our plan. Lembke knows that, so he’s not overplaying his hand. He’s only suggesting that the commission that selects judicial nominees be completely politicized and that nominees face senate approval.  

And the problem with requiring senate approval will be readily apparent if you examine what happens at the federal level. Dan Raniere, a local attorney who spoke recently on the non-partisan court plan, cites the case of Missouri Supreme Court Judge Stephen Limbaugh–yes, a cousin of that Limbaugh. Judge Limbaugh was nominated by Bush to be a U.S. District Court judge in eastern Missouri. Even though he is well respected as a judge, he’ll never get a hearing by a Democratic-majority Senate. Not with that name.

Raniere insisted that if senate hearings were required in Missouri, ninety percent or more of the people he knows who might consider applying to be judges would refuse to. They’d have to forgo their practice until confirmed, which would take at least nine months and perhaps more if there was any delay. By then, if the attorney was not confirmed, he would have lost his business.

Here’s how ridiculous the changes proposed in Lembke’s constitutional amendment are: When Ashcroft was governor he had the opportunity to appoint all seven Supreme Court justices, five of whom are now retired. They are all Republicans and all five of them oppose changes to the non-partisan plan.

Whether Lembke’s plan makes it onto the ballot or not and whether it passes if it does get there won’t change problems that are building in the outstate areas that do elect judges. There, Republican front groups are taking out of state money to defeat judges that rule unfavorably on issues that concern Republicans.

Just before the 2006 election, Fired Up! did some fine investigative reporting and told us:

Earlier this year, wealthy out of state funders spent millions trying to buy a couple of laws onto the books here in Missouri, but Cole County courts wisely struck down attempts to institute TABOR and Eminent Domain reform. Now those same funders are seeking revenge, trying to buy a judgeship here by spending obscene amounts of money attacking incumbent Judge Tom Brown.

Judge Brown, who had been in office approximately forever, was defeated. That slick operative in the Grisham novel would have shrugged and said with a smile: “That’s how it’s done.” The shadowy group that engineered Brown’s ouster was funded by New York real estate investor, Howie Rich.

It’s difficult to say whether Rich is involved in the latest incarnation of Republican smear-the-judiciary groups, Better Courts for Missouri. Fired Up! reports that Blunt henchmen Jeff Roe and James Harris are the frontmen for Better Courts, but they’re keeping a tight lid on where the funding comes from. Raniere reports that if you call the number listed on their website, no one answers or returns your call.

People on both sides of the political spectrum have speculated that pressure from Better Courts might have influenced Judge Callahan when he ruled against Robin Carnahan in January, saying that her rewrite of the ballot language for the anti-affirmative action petition was “troubling.”

One of the people doing the speculating about Callahan’s decision was Jeff Roe himself in this posting (since deleted from his blogsite):

Unfortunately, Callahan’s decisions could be overturned by judges at a higher level who have not yet learned the lesson Callahan seems to have learned.

Apparently Roe thought his group had successfully pressured Callahan. But then Roe thought better of bragging about it so publicly.

The game plan on the right is to let the legislature and the governor hand the state over to big business and social conservatives, then prevent ordinary citizens from having any recourse by also controlling the judicial branch. The first part of that plan will suffer severe damage if and when Democrats retake the legislature and the governor’s mansion. As for their attempt to control the judicial branch, I begin to wonder if the non-partisan plan needs to be expanded to the outstate courts as well.

We’re number one! We’re number one!

In one important aspect of good governance, Missouri is–believe it or not–number one. Our non-partisan court plan is a model for more than half the states in the nation. 34 other states have based their court plans on the one which Missouri–in desperation, if you want to know the truth–adopted in 1940. The Pendergast machine in K.C. had so corrupted the judiciary by allowing only politically connected and compliant judges to run for election that something had to be done.

So the plan was set up to avoid the danger of bought and paid for judges in major metropolitan areas. It was not deemed necessary to institute it  statewide. It applies only to St. Louis, Kansas City, and their surrounding areas, as well as to appellate judges (there are three districts) and the state Supreme Court. St. Charles County, for example, elects its judges. Now that Springfield has mushroomed so much, that area is considering opting into the plan.

But, as I was saying, we’re number one–that’s assuming the Republican spoilers don’t get a constitutional amendment to politicize it passed this fall.  

Unless you’re an attorney, you’ll need some background on how the plan works if you’re going to understand how damaging those proposed changes would be. And the most important part to notice about it is how the political influence is minimized. I wouldn’t kid you, the plan isn’t non-partisan. It’s more like … as minimally political as anyone could reasonably hope for. Which is good enough.

When there’s a vacancy to be filled, any practicing attorney may apply and be interviewed by a commission, which then selects a slate of three names to submit to the governor. He chooses one.

Dan Raniere, speaking on the subject of the court plan at a recent meeting, emphasized that many will argue and history will bear out, that the plan has produced high quality judges. In the 68 years since it was implemented, only two judges have failed to be retained. He says that K.C. and St. Louis metro area judges are extremely jealous of their honorable reputations. They’re careful, just to offer one example, never to have even one drink when they’re away from home unless they have a designated driver.

They have no intention of risking public opprobrium. Which brings us to the next part of the process: keeping the job. Once a judge has been appointed, he must obtain voter approval after a year on the bench and again every six years. Retention tends to be automatic, but the Missouri Bar is working to get more information to voters about the judges on the ballot. They have been surveying lawyers and passing the results of the survey along to the Women’s League of Voters. (One judge last year failed to get enough attorney votes for a positive recommendation.) Soon, the Bar will also begin surveying jurors.

The final facet to note about the plan is who comprises the committees that select judicial nominees. In Jackson and St. Louis counties, the five member committee contains: the chief judge of the circuit, two non-lawyers appointed by the governor for six year terms, and two lawyers elected to the position. The seven member committee that selects appellate and supreme court nominees consists of: the chief justice, three non-lawyers appointed by the governor for six year terms, and three attorneys elected to the position.

So here’s the bottom line on how non-partisan the plan is: a politician, the governor, makes the final selection; and the governor appoints some of the selection committee. It’s not perfect, but it could be leagues worse.

Consider Illinois, for example. In one 2006 judicial race, the candidates spent a total of $11,000,000. That’s eleven, as in million.

Or, closer to home, consider St. Charles County. Last year, while he had a case pending before a St. Charles judge, Dan Raniere received an invitation to attend the judge’s golf tournament fundraiser. Raniere made it clear that he wasn’t accusing that particular judge of impropriety, but still … the situation just ….

When you consider, then, the potential for conflict of interest, why would anyone try to weaken the non-partisan plan? What Republicans always answer is that judges aren’t held accountable.

Exactly. They’re not, and they shouldn’t be–not on a case by case basis anyway. What they should be is independent, free to render an unbiased judgment without undue pressure. Because otherwise, judges will be wrong in about 100 percent of the cases they decide. After all, one party is upset about every judgment rendered. We don’t want that one party, if he has powerful friends, to hold judges “accountable.”

They’re held accountable–when they’re up for retention, not when Pervez Musharref Lembke decides that someone ruled the “wrong” way on a custody case.

Anyone who doesn’t understand that much about the court system should butt out of impeaching judges or rewriting the non-partisan plan. But they’re at it anyway, and the plan building the most steam right now is Lembke’s.

His plan would enlarge, and above all, politicize the selection commission. Every member would be a political appointee: two from the bar (one of each party), four appointed by the governor, one by the speaker of the House, one by the minority leader of the House, one by the President Pro-Tem of the Senate, one by the minority leader of the Senate, and two members of the Missouri bar by the Attorney General, all for two year terms.

The only thing it doesn’t do is invite every member of the legislature to appoint a couple of his buddies.

But, in fact, it almost does even that, because every appointee chosen by the governor must also go before the Senate for a confirmation hearing. And that’s when the trouble really starts, as I’ll explain in my next posting.