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State Supreme Court judges nominated fairly

The undersigned are all former chief justices of Missouri. Each of us once chaired the Appellate Judicial Commission under the Missouri Nonpartisan Court Plan. We were appointed to the Supreme Court by both Democratic and Republican governors.
The Appellate Judicial Commission has recently selected three nominees to send to Gov. (Matt) Blunt. One of those nominees will become the next Missouri Supreme Court judge.

Although the three nominees, Nanette Baker, Patricia Breckenridge and Ronald Holliger, are all seasoned appellate judges, several interest groups have begun attacking the nonpartisan process by which Missouri selects judges for the Supreme Court and the Court of Appeals. They apparently believe that some other process, some politically driven process, would produce judges of the same quality that now serve Missouri’s citizens as the final arbiters of the law. For nearly 70 years, Missouri’s appellate courts have been free of the corruption, partisan bickering and scandal that has marked appellate courts in many other states. For nearly 70 years, Missouri has been a model for the nation, creating a nonpartisan method for selecting judges that nominates judicial candidates based not on political party affiliation but on merit.

One of the complaints about the process — a complaint aired in a recent editorial in the Springfield News-Leader — suggests that the process is not open to the public and for that reason, not above suspicion. We agree that government should be as open as possible. After all, it was a judge who wrote the mantra of open government advocates: "Sunshine is the best disinfectant." But the press and the government have long understood that certain aspects of governmental decision-making must be closed so as not to thwart government’s ability to serve citizens best. The Founders of this nation met in secret, forbidding press presence, when they wrote the Constitution. The press and the people had their say about that document after it was completed, but not during its preparation. Appellate courts do not allow press or public attendance at the votes following oral argument. This kind of closed meeting permits free and open discussion of the legal issues, permits subsequent changes of mind by judges upon further reflection and research and protects judges from outside influences attempting to make considerations other than the law determine the outcomes. The law does not require a city council considering buying property to meet in public session; this "secrecy" prevents speculators from profiting at the city’s expense. In the same way and for the same reasons, the law protects jury deliberations, allows secret voting in elections, and does not require the governor to admit the press into his staff meetings and job interviews for cabinet officials.

The selection of potential judges is similarly sensitive. Careers and reputations are at stake whenever the Appellate Judicial Commission meets to select nominees to send to the governor.

Imagine a successful attorney upon whom many large clients depend for counsel. The attorney wishes to devote the remainder of his or her career to public service as a judge. That attorney cannot know whether he or she will receive the Appellate Judicial Commission’s nomination to the governor. If clients learn that the attorney is considering leaving the private practice, clients may seek to spread the risk of their loss by hiring other attorneys in the event that the attorney becomes a judge. The publicity attending mere application could have a serious economic impact on that applicant and the prospect of that potential cost would discourage some qualified persons from applying at all. That same publicity would encourage lawyers who have not earned a good reputation to apply for judgeships for the purpose of having their names included among those discussed in the press for appointment to an appellate bench. With the advent and growth of electronic databases, the commission’s ability to conduct background checks through the judicial discipline commission, the Missouri bar disciplinary offices, and law enforcement agencies has become more rigorous. It remains an unfortunate fact of public life that some excellent lawyers and judges are subject to frivolous complaints or silly suits. Public discussion of meritless complaints would be a disservice and discouragement to many very well qualified applicants.

As to personnel matters specifically, the law permits full, free-ranging and honest discussion. The Sunshine Law expressly exempts personnel discussions from open-meetings requirements for the same reason that the governor does not invite the press into staff meetings and job interviews. Government’s attempts to do its best to serve the citizens would be hindered by that level of public access and the chill such access would put on legitimate inquiry and deliberation.

The Missouri Nonpartisan Court Plan allows for complete public disclosure of its nominees and permits the governor to conduct as complete and public an appointment process as he wishes. Further, the public has the ultimate say about the propriety of the appointment. The Missouri Plan allows voters to say whether the governor’s appointment should remain as a judge after the judge has published his or her opinions for a full year. Although some decry the fact no appellate judge has been turned out of office, that fact is proof that the Missouri Plan has produced a judiciary free from scandal, political corruption or judicial activism.

As (former) Gov. John Ashcroft said concerning one of his appointees to the Supreme Court, "The voters don’t know who is on the Supreme Court unless the judge does a bad job."

And that’s the way it should be — and is — thanks to the Missouri Nonpartisan Court Plan.



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Andrew Jackson Higgins, Chief Justice 1985-1987
Edward D. Robertson, Jr., Chief Justice 1991-1993
Ann K. Covington, Chief Justice 1993-1995
John C. Holstein, Chief Justice 1995-1997

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