NEWS CLIPS

Judicial selection debate spurs comments

An editorial in Thursday’s Wall Street Journal terming judicial selection in Missouri a “lawyer racket” has sparked outrage in legal circles and provoked responses in and outside the state.

The editorial, the latest in what appears to be an orchestrated series of attacks on Missouri’s Non-Partisan Court Plan, asserted that the judicial selection process was beholden to special interests and that it lacked transparency.

After taking note of the plan’s history — that it was launched in 1940 to produce candidates based on merit while diluting political influence over the courts — the editorial stated: “But that was then. Anybody with the power to choose judicial candidates was also destined to become a political actor.”

That, said the editorial, was “exactly what has happened to the Appellate Judicial Commission, made up of three members chosen by the Missouri Bar Association, three picked by current and past governors, and the chief justice of the state Supreme Court.”

The editorial adduced no evidence for its assertion, other than pointing out that of the three finalists for the current vacancy on the Missouri Supreme Court — all of them current judges on the Missouri Court of Appeals — one is a former TV reporter who practiced law for three years before her appointment to the bench, another is a lawyer “known for personal injury and product liability suits,” and the third is the “nominally ‘conservative’ option.”

“I think perhaps that their complaint is not just that ‘lawyers’ are involved in Missouri’s judicial selection process, their complaint is that the right kind of lawyers are not involved,” said Michael Holzknecht, a former Hickory County, Mo., prosecuting attorney who describes himself as a conservative Republican.

“You can’t blame them for wanting the unfettered ability to hand-pick the judges who will do their bidding,” he said. “That’s just good old-fashioned partisan politics, right?”

The Journal’s editorial appeared amid a spate of recent attacks on the merit-based selection of judges in Missouri. The most notable attacks have come from Gov. Matt Blunt and by a recently formed group called the Adam Smith Foundation. The latter launched radio ads seeking to discredit the Missouri Plan and posted billboards urging an end to “judicial activism.”

While decrying the selection process’s lack of transparency, the foundation has released no information about its supporters or financial backers. Similarly, what it recently billed as an analysis of the commission process was attributed to “anonymous research by attorneys.”

Much of the anger directed at the foundation and The Journal editorial was over what critics said was their mischaracterization of Missouri’s judicial selection process, which has served as a model for dozens of states.

“It would appear they failed to investigate and seek more information about what the system really is and how it works and the people involved in it,” said Ann Covington, who was appointed to the Missouri Supreme Court by then-Gov. John Ashcroft in January 1989 and served until January 2001.

Covington, now a lawyer in private practice with Bryan Cave, said that the editorial took gratuitous potshots at the three candidates for the Supreme Court vacancy, never discussing their professional qualifications for the job — which, as part of the Missouri Plan’s effort to minimize the influence of politics in the selection process, are the sole criteria the Appellate Judicial Commission is supposed to examine. The commission is not supposed to inquire into candidates’ politics or even their judicial philosophy.

Kansas City lawyer David Oliver, whose late father, John W. Oliver, was a federal judge, said that Blunt may not have accused the candidates of being activists, “but there seems to be some sort of whispering campaign going on that these three are no good.”

“The term just keeps creeping into conversations the way Senator Joseph McCarthy used to do,” he said. “That troubles me and makes me nervous.”

It’s that kind of guilt by association that the merit selection process was designed to minimize, if not avoid. The point was made in a letter the president of the American Judicature Society wrote to The Journal last week (the letter had not been published at the time this column was written).

In the letter, John R. Tunheim said that merit-based selection processes, by placing the focus on professional qualifications and fitness for the bench, “provide the appropriate balance between independence of the judiciary and accountability to the rule of law and the people through periodic retention elections.”

“Any movement away from these systems will only erode the standing of state judiciaries and damage public trust and confidence in the fairness and impartiality of the courts,” he wrote.

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