University of Kansas Law Professor Stephen Ware's presentation on Missouri Judicial Selection, Nov. 7, 2017, Park University.

1. Missouri Supreme Court
Selection and Retention
in National Perspective
Stephen J. Ware
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).
You can Google “The Missouri
Plan in National Perspective”.

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

4. 1. Because judges, esp. (state and US)
SCT justices, influence the direction of the
law, their political leanings matter.
2. Important lawmakers should be
selected democratically. However,
3. Judges differ from other lawmakers
(judicial independence) so democracy
should loom larger in initial selection than
in retention.

5. 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)

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

7. People of MO Members of Bar
3 Chief Justice 3
Governor
MO App.Judic.Comm’n

8. Power in
Judicial Selection
System Power
Elections Citizens
Senate
Confirmation
Governor and
Senate
Missouri Plan Governor and Bar

9. 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.

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
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 Carolina
North Dakota
Ohio
Oregon
Washington
Wisconsin
Alabama
Illinois
Louisiana
New Mexico
Pennsylvania
Texas
West Virginia

11. Pattern around the country:
States privileging the bar in the initial
appointment of justices often see
relatively-liberal justices issue liberal
rulings that prompt conservatives to
oppose those justices’ retention, or to
change the method of SCT selection.
Liberals and bar groups then charge
conservatives with seeking to politicize
courts.

12. 1. Because judges, esp. (state and US)
SCT justices, influence the direction of the
law, their political leanings matter.
2. Important lawmakers should be
selected democratically. However,
3. Judges differ from other lawmakers
(judicial independence) so democracy
should loom larger in initial selection than
in retention.

13. Advocates of judicial
independence should prefer the
“federal model” (senate
confirmation followed by long,
non-renewable term)
over (even FL’s version of) the
Missouri Plan (bar-privileging
initial selection, followed by
retention elections).

14. “Federal model” tends to be more
transparent and accountable than
MO Plan:
Around the nation, senate
confirmation votes tend to be
public, while JNC votes tend to be
secret.

15. Reductions in bar power over
judicial selection:
Tennessee
Kansas
Oklahoma
Florida

16. 2012 MO voters overwhelmingly (76%)
rejected Amendment 3: “Shall the
Missouri Constitution be amended to
change the current nonpartisan selection
of supreme court and court of appeals
judges to a process that gives the
governor increased authority to: appoint a
majority of the commission that selects
these court nominees; and appoint all
lawyers to the commission by removing
the requirement that the governor's
appointees be nonlawyers?”

17. 2017 SJR 11 (similar to 2016’s SJR 30)
summary: “when a judicial vacancy
occurs in a court under the nonpartisan
court plan the governor shall appoint the
new judge from a list of names of all
qualified applicants submitted by a
nonpartisan judicial commission, rather
than from a list of only three names. The
number of nominees on the list is not
limited, but shall include at least three
names.”

18. Stephen J. Ware
Professor of Law
University of Kansas
ware@ku.edu
785-864-9209