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Judicial activists? There’s no sign

JEFFERSON CITY — Patricia Breckenridge finished law school in 2 1/2 years instead of the usual three while working as a waitress. By age 28, she had become one of only a handful of women judges in Missouri.

Ron Holliger taught school for a year before attending law school, where he ranked 20th in his class of 147. Considered a workhorse, he combines his job as an appellate judge with overseeing the state’s trial judge education program.

Nannette Baker left a career in television news to become a lawyer. After representing injured railroad workers, she moved up the ladder quickly to become a circuit judge and then, the first black woman judge on the Court of Appeals in St. Louis.

Now, Breckenridge, Holliger and Baker are finalists for a seat on the Missouri Supreme Court, and Gov. Matt Blunt has until late September to pick one of them. But thus far, the controversy swirling over how they were selected has obscured who these candidates are and whether they are qualified for the state’s highest court.

The governor urged the state’s nonpartisan screening panel, the Appellate Judicial Commission, to give him a slate of nominees who would refrain from legislating from the bench. Blunt said in a speech in Kansas City in June that "a judge’s responsibility is to rule on the law, not write it."

Do these judges meet his test? Blunt is still reviewing their records, but so far, no one has called them "judicial activists."
The term generally refers to a philosophy of making laws instead of interpreting them.

St. Louis lawyer Bill Placke, who has studied the nominees’ opinions, doesn’t use the term "activist." But he said that all three nominees would be more likely to side with the four Democratic appointees currently on the Supreme Court than with the two Republican judges on the high court.

Placke, president of the St. Louis chapter of the Federalist Society, said his review indicates that Breckenridge would likely agree with the Democrats on criminal law matters.

However, he said Breckenridge was "excellent on labor and employment law," strictly applying technical requirements favored by the more conservative members of the court.

Holliger, Placke said, would fit into the Democratic mold on tort law, personal injury and employer liability. But he’s more conservative on criminal law, Placke said.

Placke said Baker is difficult to analyze because she has authored few rulings but she has tended to favor workers in workers compensation cases.

Republican Govs. Christopher "Kit" Bond and John Ashcroft appointed Breckenridge to judicial posts while Democratic Govs. Mel Carnahan and Bob Holden tapped Holliger and Baker.

But Douglas Abrams, an associate professor at the University of Missouri-Columbia School of Law, cautioned against reaching conclusions about the judges based on past political alliances.

"By the time judges reach the appellate level, most judges stop being Republicans or Democrats," Abrams said.

Taken together, the three nominees have written more than a thousand Court of Appeal opinions. They’ve weighed in on charter schools, the sunshine law and workers compensation. They’ve resolved disputes about unlawful traffic stops, the admissibility of evidence and ineffective counsel.

"I don’t think you can point to any opinion by any of them that would qualify for judicial activism," said Edward "Chip" Robertson, a former Supreme Court judge who appointed by Ashcroft.

Blunt has asked the nominees to answer 111 questions about their backgrounds and philosophies. After he receives the information, he plans to interview them.

The governor told reporters Friday that while some say he’s asking too many questions, he disagrees.

"It’s the most important court in the state of Missouri, and because of that, we’re going to have a very, very thorough review."

Asked whether he was considering spurning all three nominees and letting the Appellate Judicial Commission make the selection, Blunt said: "All those options are on the table."

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