The Missouri Plan of judicial selection privileges the bar; it is political and undemocratic. It fails to protect judicial independence.

1. Missouri Supreme Court
Selection and Retention
in National Perspective
Stephen J. Ware
Frank Edwards Tyler
Distinguished Professor of Law
University of Kansas
ware@ku.edu
785.864.9209

2. Stephen J. Ware, The Missouri
Plan in National Perspective, 74
MO. L. REV. 751 (2009).
Plus, testimony before the
Missouri General Assembly.

3. Initial selection of a judge
distinguished from
method of retaining that judge
(or not) on the court.

4. A Quick History
• Framers (Executive and
Legislature appoint Judiciary)
• Jacksonian Democracy (citizens
elect judges)
• Progressive Era’s “Merit
Selection” (a/k/a “Missouri Plan”)
(Power to Experts)

5. 1) Applications to Missouri
Appellate Judicial Commission
2) Commission picks 3 finalists
3) Governor must pick 1 of the 3
Commission is the gatekeeper to
the Missouri Supreme Court.
Missouri Supreme Court
Selection Process

6. Commission is the gatekeeper to
the Missouri Supreme Court.
“I don’t care who does the electing
so long as I do the nominating.”
William “Boss” Tweed, political boss of
Tammany Hall, quoted in J. Jackson Barlow et
al. The New Federalist Papers 338 (1988).

7. Commission is the gatekeeper
to the Missouri Supreme Court,
so who picks the Commission
that then picks the Supreme
Court nominees?

8. People of MO Members of Bar
3 SCT Justice 3
Governor
MO App.Judic.Comm’n

9. Power in
Judicial Selection
System Power
Elections Voters
Senate
Confirmation
Governor and
Senate
Missouri Plan Governor and Bar

10. Bar Control of Supreme Court Selection
High Bar
Control
l l l l l l
Low Bar
Control
l
MO Plan
Comm’n
majority
selected
by bar
MO Plan
Comm’n
near
majority
selected
by bar
Nom’n
Comm’n
w/ no or
little role
for bar
Legislative
Appointment
Governor’s
Nominee
Confirmed
Non-Partisan
Elections
Partisan
Elections
Kansas Alaska
Indiana
Iowa
Missouri
New Mexico
Oklahoma
Nebraska
South Dakota
Wyoming
Arizona
Colorado
Florida
South Carolina
Virginia
California
Connecticut
Delaware
Hawaii
Maine
Maryland
Massachusetts
New Hampshire
New Jersey
New York
Rhode Island
Tennessee
Utah
Vermont
Arkansas
Georgia
Idaho
Kentucky
Michigan
Minnesota
Mississippi
Montana
Nevada
North Dakota
Oregon
Washington
Wisconsin
Alabama
Illinois
Louisiana
North Carolina
Ohio
Pennsylvania
Texas
West Virginia

11. Democratic Legitimacy?
Equality Among Citizens?
Contestable
Elections
Yes.
1-person-1-vote in electing
judge.
Senate
Confirm-
ation
Yes.
1-person-1-vote in electing
Gov. and Senate
Missouri
Plan
No.
Lawyer’s vote counts more.

12. People ask: Why should judges be
selected democratically?
We don’t select our doctors and plumbers
democratically.
How are judges different from doctors and
plumbers?

13. People ask: Why should judges be
selected democratically?
We don’t select our doctors and plumbers
democratically.
How are judges different from doctors and
plumbers?
Judges make law.

14. Judicial lawmaking is routine, inevitable,
and sometimes tremendously important,
especially at the (state or federal)
supreme court level.

15. Statutes cannot foresee all possible cases, so
statutory language can be incomplete—leaving
gaps for judges to fill.
And legislatures sometimes punt unresolved
issues to courts.
Either way, when statutes are incomplete,
vague, or ambiguous, judges must interpret
them to resolve cases.
Statutory interpretation often involves
“substantial judicial discretion,” and thus
constitutes “judicial lawmaking, not lawfinding.”
Frickey

16. Even more routine judicial lawmaking is
judges making the common law—big
parts of important areas of law, like
contracts and torts, are not addressed by
statute, and thus remain governed by the
common law.
Even a great critic of judicial lawmaking,
Justice Scalia, accepted “that judges in
fact ‘make’ the common law.”

17. So, judicial lawmaking—in both
statutory and common law cases—
is routine and long-established.
And judges are human, so …

18. “Liberal judges tend to reach liberal outcomes,
and conservative judges tend to reach
conservative outcomes: not in every case--
perhaps not even in many cases--but in enough
cases to make a difference. In cases where the
law is ambiguous, judges consciously or
subconsciously consult their own world views.”
“There are now stacks and stacks of books and
academic papers demonstrating that judges
with different ideological views make different
decisions in predictable ways.” Brian Fitzpatrick, 42 Okla.
City U. L. Rev. 53, 54–55 (2017).
So, judges’ ideologies influence the content of
the law.

19. Judges’ ideologies are especially important in
constitutional cases because
Legislatures can override judges’ statutory
interpretations and common law rules,
But legislatures cannot override judges’
constitutional interpretations.
That takes a constitutional amendment.

20. Importance of judicial ideology
is why we have big judicial
selection battles.
Jackson, Ketanji Brown 53-47
Barrett, Amy Coney 52-48
Kavanaugh, Brett 50-48
Gorsuch, Neil M. 54-45

21. Importance of judicial ideology is
why we have big judicial
selection battles—in federal and
state courts.
Recent state high court
examples in NY (senate rejected
nominee) and Wisconsin
(election flipped control).

22. Power in
Judicial Selection
System Power
Elections Voters
Senate
Confirmation
Governor and
Senate
Missouri Plan Governor and Bar

23. In the contemporary US, lawyers tend to
be relatively progressive, and in nearly
every state more progressive than their
state’s voters and elected officials. As
judges are nearly always lawyers,
previous scholarship unsurprisingly finds
that judges tend to be more progressive
than their states’ voters and elected
officials.
Ware summarizing campaign contribution and voter registration
data in, and conclusions by, Fitzpatrick, 70 Vand. L. Rev. at
1733 (2017), and Adam Bonica & Maya Sen, The Politics of
Selecting the Bench from the Bar, 60 J. L. & Econ. 559 (2017).

24. In nearly every state,
judges tend to be more progressive than
their states’ voters and elected officials.
Prof. Fitzpatrick refers to that as “leftward
judicial skew.”

25. Prof. Fitzpatrick’s data show that the size
of this leftward judicial “skew” compared to
the state’s voters varies according to the
method by which judges are selected. The
leftward judicial skew tends to be larger in
Missouri Plan states—that is, states that
privilege the bar with seats on the judicial
nominating commission—than in states in
which judges are selected by elected
officials or by partisan elections.
Ware, summarizing Fitzpatrick, 70 Vand. L. Rev. at 1733 (2017).

26. These findings support the
straightforward hypothesis that a
judicial selection process empowering
a relatively progressive group (the
bar) tends toward more progressive
judges, while judicial selection by the
voters, or by the voters’ elected
representatives, tends toward judges
more ideologically compatible with
those voters.

27. Pattern around MO Plan states:
States privileging the bar in the initial
appointment of SCT often see relatively
progressive SCT issue progressive (for
their state) rulings that prompt
conservatives to oppose those justices’
retention, or to change the method of
SCT selection.
Progressive and bar groups then
charge conservatives with seeking to
politicize courts.

28. “The best of the various unsatisfactory
ways of selecting high court judges is
probably that prescribed in the
Constitution of the United States.”
Paul D. Carrington, Judicial Independence and
Democratic Accountability in Highest State
Courts, 61 Law & Contemp. Probs. 79, 114
(1998).

29. “Federal model” (senate
confirmation) is indirect democracy at
the selection stage.
Senate’s public hearing and vote
contrast w/ secrecy of some
commissions.
Long, non-renewable term protects
judicial independence more than
judicial elections, including MO Plan’s
retention elections.

30. 1. Because judges, esp. on (state and US)
supreme courts, influence the direction of
the law (“make law”), their ideologies
matter.
2. Important lawmakers should be
selected democratically.
3. Justices differ from other important
lawmakers, so democracy should loom
larger in their initial selection than in their
retention.

31. Initial Selection
Contest-
able
Election
Senate
Confirm-
ation
JNC +
Governor
(MO Plan)
Contestable
Election
Retention
Election
Reappoint by
Exec/Legisl
Nonrenew-
able Term
Retention

32. Missouri Supreme Court
Selection and Retention
in National Perspective
Stephen J. Ware
Frank Edwards Tyler
Distinguished Professor of Law
University of Kansas
ware@ku.edu
785.864.9209