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.

 

The irony impaired opponent of the Missouri Court Plan, Better Courts for Missouri,  doesn’t disclose on their web site who has been funding their opposition to the current appellate judicial selection plan in Missouri. They have been paying for robocalls to get people to pressure the Missouri Senate to change the judicial selection process that has been in effect since 1940. This phone call arrived yesterday:

The transcript:

It’s political manipulation of the Missouri court system. Hand picking judges behind closed doors in almost absolute secrecy. Big city trial lawyers who contribute millions of dollars to politicians are trying to buy power and hand pick our judges. It’s time to stop the trial lawyers’ back room deals. Call XXX-XXX-XXXX and tell your senators to support selecting our judges out in the open, not behind closed doors. Call XXX-XXX-XXXX today. Paid for by Better Courts for Missouri.

Irony of ironies. They criticize alleged non-transparency while being non-transparent.

They would rather pressure the judicial selection process by ginning up astroturf (fake grassroots) opposition to candidates under consideration by the commission. If you like the current way we select United States Supreme Court justices, you’ll love their hopes for the process in Missouri.

Some of our previous coverage:

The irony impaired opponent of the “Missouri Court Plan”

Attack on the Non-Partisan Court Plan

The Missouri Plan: In Plain English

The Missouri Court Plan

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.