Nonpartisan Court Plan has faced long history of scrutiny
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Nonpartisan Court Plan has faced long history of scrutiny

Date: October 8, 2008
By: Chris Dunn
State Capitol Bureau
Links: HJR 31 in the 2007 legislative session, http://www.mdn.org/2008/STORIES/AGNONPCT.HTM, http://www.mdn.org/2007/STORIES/SUPREME.HTM, http://www.mdn.org/2007/STORIES/SUPREME2.HTM

JEFFERSON CITY - For decades, Missouri's nonpartisan court plan was held out as a national model for removing judicial selections from partisan politics. 

But during the administration of Gov. Matt Blunt, it's come under attack and has become an issue in the 2008 campaign for governor.

The Missouri Nonpartisan Court Plan was approved in 1940 as a means to remove the selection of judges from partisan politics. This procedure is used to appoint Missouri Supreme Court justices, as well as judges of trial courts in Kansas City and St. Louis and the state's three appeals courts.  The remaining state judges in the state are elected on partisan ballots.

Under the Missouri Plan, a nominating of judges, lawyers and lay persons select three nominees for a judicial vacancy.  The governor is restricted to naming one of the three.  If he refuses, the nominating commission picks the judge. 

Although cited across the country, the approach came under attack in 2007 by a conservative activist organization, the Federalist Society which launched a campaign to do away with the system.  Critics charged the nonpartisan court plan restricted the governor's choices for naming judges, gave the governor too little a voice in naming the nominating commissions and gave the legal profession too strong a voice in picking judges.

In the legislature, the fight against the plan was led by Rep. James Lembke, R-St. Louis County, who filed a proposal in 2007 to eliminate the nominating commissions.  Under his proposal, the governor could nominate whomever he chose for a nonpartisan judgeship, but the nomination would be subject to Senate confirmation.  Lembke's proposal cleared a House committee in 2007, but went no further in the legislative process.

Other proposals have been offered to expand the nominating commission or the number of nominees submitted to the governor by the nominating commission.

Last summer, Blunt expressed disdain when faced with three nominees for the Missouri Supreme Court. He questioned the merits and transparency of the Missouri Plan, and requested specific information about the nominees' selection process by the commission. The governor eventually appointed Patricia Breckenridge, but in his endorsement, called her "the best candidate of the three candidates submitted to me."

In September, the Republican candidate for governor, Kenny Hulshof, offered his own proposal -- to replace the nominating commission's three attorneys with one trial judge and two appeals court judges. All would be randomly chosen.

Hulshof's most significant amendment would Hulshof would also increase the number of nominees submitted to the governor from three nominees to five, and would give the governor two opportunities to reject the entire panel of nominees. Should this happen, the governor could then appoint his or her own candidate, whom the Senate would have to confirm. Under the current process, the commission makes the final appointment if the governor does not choose any of the three nominees.

The Missouri Bar Association also denounced Hulshof's proposal.

"Anyone who would try to politicize the justice system that is fair and impartial is doing grave danger and injustice to the citizens of Missouri," said Keith Burkes, executive director of the Bar Association, in a previous interview.

 


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Baker added, "Open up the process, and remove special interests, and expand the number of nominees, and allow other groups to be part of the process."

Hulshof thinks the Appellate Judicial Commission has become too politically biased and would modify the Missouri Plan.  Hulshof proposes removing special interests from the commission that nominates judges for the Supreme Court, replacing the Chief Justice with a retired Supreme Court Judge, and giving the governor the power to veto up to two slates of nominees.

"He believes it needs to be more transparent, but ultimately we must protect the Missouri Nonpartisan Court Plan," said Nixon's spokesman, Oren Shur, in a previous interview. "It serves as a model to states across the nation, as an example of how to keep politics out of the judicial nominating process."

Shur said the state needs more transparency in the judicial selection process, but must also protect the Nonpartisan Court Plan and keep politics out.


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He said that many activist judges are being presented to the governor and it's not a true mix. 


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"The Missouri Nonpartisan Court Plan is a model for the country, and for a reason," said campaign spokesman Danny Kanner. "Senator Koster supports the Missouri Plan as it stands, and will continue to advocate an apolitical, nonpartisan judicial system."


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